LASA 1—The Buying ProcessAssignment ComponentU.docx

LASA 1—The Buying Process
Assignment Component
Unsatisfactory
Emerging
Proficient
Exemplary
Score
Content Knowledge: Understanding
Communicates an understanding of how to identify the problem
and describe differences between current and ideal state, what
drives it, and how it can benefit the buyer.
Response does not incorporate analysis or synthesis of central
concepts of the assigned topic.
Response reflects lack of understanding of the specific topic
within the discipline.
Response provides inaccurate supporting details and irrelevant
examples.
Response incorporates minimal analysis and synthesis of central
Response reflects a superficial understanding of the specific
topic within the discipline.
Response provides few details and examples.
Response incorporates analysis and synthesis of central
Response reflects understanding of the nature of the specific
topic within the discipline and its applications in contemporary

times.
Response provides necessary details and specific examples.
Response incorporates in- depth analysis and synthesis of
central concepts of the assigned topic leading to new
conclusions and recommendations.
Response reflects a thorough understanding of the nature of the
specific topic within the discipline and its applications in
contemporary times.
Response provides a variety of insightful details and specific
examples that consider numerous perspectives.
/ 40
Communicates an understanding of how to describe the product
and explain the internal and external sources.
Response provides
topic within
topic within the discipline
specific topic
/ 40
Page 1 of 4 Marketing Planning and Strategy
©2012 Argosy University

inaccurate supporting details and irrelevant examples.
the discipline.
and its applications in contemporary times.
within the discipline and its applications in contemporary times.
Communicates an understanding of how to evaluate the
alternatives, defined in terms of consumer needs, product
benefits, and/or attributes. Identifies selection criteria.
Response provides inaccurate supporting details and irrelevant
examples.
topic within the discipline.
topic within the discipline and its applications in contemporary
times.

specific topic within the discipline and its applications in
contemporary times.
/ 40
Content Knowledge: Application Component 1
Communicates the ability to define the purchase decision and
identify the high-level factors that interrupt or deter a purchase.
Response exhibits substantial gaps in knowledge of the
disciplinary content knowledge.
Response provides a
Response exhibits some gaps
in knowledge of the disciplinary content knowledge.
Response
Response demonstrates a working command of the disciplinary
content knowledge.
Response
Response demonstrates an exemplary understanding of the
disciplinary content.
Response provides an in- depth discussion
/ 40
(
4
) (
LASA
1
—
The
Buying
Process
)
(

of 4
Marketing
Planning
and
Strategy
©2012
Argosy
University
)
minimal explanation of the specific issue within the context of
the topic area.
Response fails to provide supporting details or examples.
discusses the specific issue superficially within the context of
the topic area using a few details.
Response relates the specific aspect of the issue to applicable
areas within the discipline.
Response is supported by current literature but is not
consistently done.
.
examines the specific issue within the context of the topic area
using relevant details and examples.
Response analyzes the specific aspect of the issue to applicable
areas within the discipline and their relevance to real-world
contexts.

Response is adequately supported by current and relevant
literature.
of the specific issue within the context of the topic area using
relevant details and numerous examples.
areas within the discipline and provides insightful
recommendations related to real- world contexts.
Response is supported by current and relevant literature based
on sound theories and best practices leading to effective
conclusions.
Content Knowledge: Application Component 2
Communicates the ability to evaluate post-purchase evaluation.
Response exhibits substantial gaps in knowledge of the
disciplinary content knowledge.
Response provides a minimal explanation of the specific issue
within the context of the topic area.
Response fails to provide supporting details or examples.
Response exhibits some gaps
in knowledge of the disciplinary content knowledge.
Response discusses the specific issue superficially within the
context of the topic area using a few details.
Response relates the specific aspect of the issue to applicable
areas within the discipline.
Response is
Response demonstrates a working command of the disciplinary
content knowledge.
Response examines the specific issue within the context of the
topic area using relevant details and examples.
areas within the discipline and their
Response demonstrates an exemplary understanding of the
disciplinary content.
Response provides an in- depth discussion of the specific issue
within the context of the topic area using relevant details and
numerous examples.

areas within the discipline and provides insightful
recommendations related to real-
/ 20
(
Page
3
of 4
Marketing
Planning
and
Strategy
©2012
Argosy
University
)
supported by current literature but is not consistently done.
relevance to real-world contexts.
Response is adequately supported by current and relevant
literature.
world contexts.
Response is supported by current and relevant literature based
on sound theories and best practices leading to effective
conclusions.

Written Communication/Person al Effectiveness
Conveys through, written word understanding, and application
of academic writing has proper grammar, spelling, and
attribution.
Writing is disorganized and lacks appropriate APA style and
format.
Writing is unclear and includes major grammatical and usage
errors.
Writing shows some gaps with respect to organization and
rhetoric, and it has some errors with respect to APA style and
format.
Writing is somewhat clear and includes some major grammatical
or usage errors.
Writing is concise and clear in content, language use, grammar,
organization, and sentence structure.
Writing is free of major grammatical and usage errors.
Writing is professional and scholarly, reflecting mastery of
content, language use, grammar, organization, and sentence
structure.
Writing is cohesive, convincing, and well composed.
/ 20
Total:
/ 200 pts
(
Page
4
of 4
Marketing

Planning
and
Strategy
©2012
Argosy
University
)
Citation: 1989-1990 Can. Hum. Rts. Y.B. 3 1989-1990
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Aboriginal Peoples
and the Canadian Charter:
Interpretive Monopolies,
Cultural Differences

Mary Ellen TURPEL*
A sensitivity to cultural differences in
human rights analysis is essential for
understanding Aboriginal rights at Cana-
dian law and for analyzing the relation-
ship between Aboriginal peoples and
Confederation. The author suggests that
sensitivity to cultural difference is an
imperative which should inform all levels
of constitutional legal analysis with
respect to Aboriginalpeoples. This imper-
ative may require critical analysis of the
cultural self-image of the Canadian
human rights system, and increased tol-
eration of difference in the political,
social, and legal institutions operating
within the Canadian state. The author
suggests that the Charter and conceptions
of rights at Canadian law can be situated
culturally, arguing that they are by no
means universal or progressive, especially
insofar as they affect Aboriginal peoples.
Dans une analyse des droits de la per-
sonne, la sensibiliti aux diffirences cul-
turelles est essentielle pour comprendre les
peuples autochtones et leurs droits dans
le contexte de la confrderation cana-
dienne. L 'auteure suggbre que cette sen-
sibilit6 aux diff6rences culturelles est un
impratif qui devrait 6clairer toutes les
facettes de l'analyse constitutionnelle des
droits des peuples autochtones.
Cet impiratif requiert une analyse cri-

tique du systme canadien des droits de
la personne, lequel reflte trs imparfai-
tement les valeurs autochtones, et une
tolerance accrue des institutions poli-
tiques, sociales, et ligales de l'ftat cana-
dien t l'gard des differences culturelles.
L'auteure soutient que la Charte et les
conceptions des droits vhicul~es en droit
canadien doivent etre adapties aux dif-
firences culturelles; elle allkgue que ces
droits n'ontpas une signification univer-
selle etprogressive en ce qui concerne les
peuples autochtones.
* Professor, Dalhousie Law School. There are several people
who have shared with me
the ideas expressed in this paper in various discussions and
collective projects and to whom
I am very thankful-these are three First Nations women, Marlyn
Kane, Sylvia Maracle and
Patricia Monture; and my colleagues at Dalhousie Law School,
Wade MacLauchlan, Dianne
Pothier, and Bruce Wildsmith; and, last but probably most,
Mark Austin. I would like to acknowl-
edge the assistance of the Human Rights Law Fund of the
Department of Justice (Canada) in
the preparation of this paper.
4 Canadian Human Rights Yearbook

When we discover that there are several cul-
tures instead of just one and consequently
at the time when we acknowledge the end
of a sort of cultural monopoly, be it illu-
sory or real, we are threatened with the
destruction of our own discovery. Suddenly
it becomes possible that there are just
others, that we ourselves are an 'other'
among others. '
This article pursues an unapologetic critique of the Canadian
Charter
of Rights and Freedoms.2 It is not intended to be reconstructive,
to suggest
ways of resolving specific human rights dilemmas, or to offer
some defini-
tive interpretive or ideological context in which the Charter
should be situated.
It is simply an exploration of cultural authority in Charter
interpretation and
application from one particular perspective. In writing this
article, I hope
to create a space for debate about the character and implications
of cultural
difference for legal, and especially constitutional, analysis-a
space which
has been opened in other disciplines but which is clearly a late-
comer to legal
discourse.
3
The objective of my criticism is simply to call into question the
cultural
authority of the Canadian Charter of Rights and Freedoms, and
constitu-

tional legal analysis generally, especially insofar as the Charter
is applied to
Aboriginal peoples. 4 By cultural authority, I mean, in this
context, the
authority which one culture is seen to possess to create law and
legal lan-
guage to resolve disputes involving other cultures and the
manner in which
it explains (or fails to explain) and sustains its authority over
different peoples.
I intentionally use the term 'culture' and 'cultural difference'
instead of 'race'
or 'racial difference' because I view this as more accurate and
more expan-
sive. The terms 'race' or 'racial differences' are too readily
equated with
'colour' or visible biological differences among peoples;
whereas cultural
differences should be understood more as manifestations of
differing human
(collective) imaginations, of different ways of knowing. The
expression 'cul-
1. Paul Ricoeur, History and Truth, Trans. C. Kelby, (Evanston:
North Western Univer-
sity Press, 1965) c. 5 at 278.
2. Part 1 of the Constitution Act, 1982, being Schedule B of the
Canada Act 1982 (U.K.),
c. 11 [Hereinafter referred to as the Charter].
3. See J.F. Lyotard, The Postmodern Condition: A Report on
Knowledge, trans.
Bennington and Massumi (Minneapolis: University of
Minnesota Press, 1984); and B. Johnson,
A World of Difference (Baltimore: Johns Hopkins University

Press, 1987).
4. I use the term Aboriginal throughout this paper simply
because it is currently a term
which I take to embrace all of the first peoples of what is now
called Canada: peoples of various
First Nations (e.g., Cree, Mohawk, Ojibway), the Mgtis, and
Inuit.
(1989-1990) 6 C.H.R. Y.B.
Aboriginal Peoples and the Canadian Charter
tural difference' conjures up more than differences of
appearance (colour).
It allows us to consider profound differences in understandings
of social and
political life.
This expression is particularly apropos in the context of
discussing con-
stitutional normativity because it enables us to take into account
the extent
to which Aboriginal peoples reject or embrace any of the liberal
premises
of the Canadian legal system, something which cannot be
considered within
the paradigm of race. Within that paradigm, the discussion too
quickly
focuses on the negative aspects of victimization,
marginalization and aliena-
tion of Aboriginal peoples from the current system.
5 While such an

approach is significant in understanding the problems
Aboriginal peoples
confront, the broader features of Aboriginal cultures cannot be
considered
positively unless one is sensitive to cultural differences. 6
Within the rubric
of cultural difference, as I view it, it is possible to consider the
extent to which
the present conception of the Canadian constitution embraces or
acknowl-
edges the different cultural or ideological systems of all peoples
over which
it claims authority, and how this is factored into constitutional
interpreta-
tion. My thesis is that, despite protestations to the contrary,
cultural differ-
ences, at least First Nations' cultural differences, have not been
considered
as a legitimate part of, or challenge to, constitutional
interpretation.
My consideration of cultural differences and the Charter has
been
informed by my own cultural experiences as an Aboriginal
woman, lawyer
and law professor. I can in no way speak for or claim to
represent a position
shared by all Aboriginal peoples. Nor would I want to make
such a claim.
My purpose in writing this paper is to suggest that there are
important chal-
lenges to the way in which the Charter is interpreted, its
cultural legitimacy
5. See for example, an excellent study by M. Jackson on
Aboriginal peoples, "Locking

Up Natives in Canada" (1989) 23 U.B.C. L. Rev. 215.
6. For those who may be unfamiliar with Aboriginal problems,
the following excerpt
from the Final Report of a United Nations Special Rapporteur,
Martinez Cobo, on the Prob-
lems of Discrimination against Indigenous Peoples, U.N.
E/CN.4/Sub.2/1983/21/add.8, should
provide some context:
Much of their land has been taken away and whatever land is
left to them is subject
to constant encroachment. Their culture and their social and
legal institutions and systems
have been constantly under attack at all levels, through the
media, the law and the public
education systems. It is only natural, therefore, that there
should be resistance to further
loss of their land and rejection of the distortion or denial of
their history and culture
and defensive/offensive reaction to the continual linguistic and
cultural aggressions and
attacks on their way of life, their social and cultural integrity
and their very physical
existence. They have a fight to continue to exist, to defend their
lands, to keep and to
transmit their culture, their language, their social and legal
institutions and systems and
their ways of life, which have been illegally and unjustifiably
attacked. (at 49)
TURPEL

as the "supreme law of Canada," ' 7 and its symbolic economy,
which should
be considered by those in the business of constitutional
discursion.
(i) CULTURAL DIFFERENCE IN CONSTITUTIONAL LAW
By suggesting that a space needs to be opened in constitutional
discourse
to explore cultural difference, I make no attempt to define the
context of
that space or those differences. I would like to raise some
specific areas of
concern about the institutional and imaginative framework of
the Canadian
Charter vis-t-vis Aboriginal peoples in order to call into
question what are
arguably general epistemological problems with legal
knowledge, reasoning
and decision-making. For example, I question the extent to
which the domi-
nant legal culture has taken account of differences between
itself and Aborig-
inal peoples, and differences within the plethora of Aboriginal
cultures which
exist, precariously, alongside Canadian society.
The insensitivities to cultural difference that interest me operate
at
various levels in constitutional legal analysis. The most obvious
insensitivity
is found in the text of the constitution, but there is a
constellation of insensi-
tivities and (mis)understandings which underlies the framing of

the debate
over social and economic power or cultural accommodation as a
debate about
rights. These are not mutually exclusive areas. Clearly, both
textual insensi-
tivities and the one-dimensional cultural images suggested by
the texts of the
constitution are informed by a more complex web of cultural
and social rein-
forcements. It is easy to forget the extent to which the
constitutional system,
both institutionally and imaginatively, is a system of a
particular historical
and cultural set of circumstances and interests. Moreover, it is
too quickly
overlooked that the entire process and substance of
constitutional develop-
ment and interpretation is the construct of a highly legalistic,
adversarial,
and abstract set of doctrines and theories which developed
according to the
needs of the predominantly Anglo-European colonialists.
(a) The Textual Offence
For an outside critic of the constitutional structure, there is the
evident
problem of using the 'master's' language and conceptual
apparatus to dis-
mantle the 'master's' house. 8 In other words, how, as a question
of method
7. Section 52(1) of the Constitution Act 1982, provides:
The Constitution of Canada is the supreme law of Canada, and
any law that is inconsis-

tent with the provisions of the Constitution is, to the extent of
the inconsistency, of no
force or effect.
8. A. Lorde, "The Master's Tools Will Never Dismantle the
Master's House" in A. Lorde,
Sister Outsider (Trumansburg, N.Y.: the Crossing Press, 1984).
Audre Lorde, a Black American
writer interested in issues of cultural difference, puts it this
way: "What does it mean when
the tools of a racist patriarchy are used to examine the fruits of
that same patriarchy? It means
that only the most narrow perimeters of change are possible and
allowable." (at 110)
(1989-1990) 6 C.H.R.Y.B.
can those sensitive to cultural difference explain that difference
when no
common language other than that of the predominant culture
and legal system
is available? I do not have an answer to that question; I attempt
to support
its premise by problematizing language and legal structure
where I have found
it to be culturally insensitive. I do not discount the extent to
which my criticism
is here narrowly confined to constitutional interpretation, and
particularly
to the Charter: a realm within which internal arguments and
counter-

arguments about rights seem to hold the possibility of playing
themselves
out endlessly through interstitial rhetorical moves. The same
kind of analysis
would be interesting in so-called private law areas such as
contract, property,
or tort law doctrine.
At the textual level, I would suggest that the statement in the
Preamble
to Part I of the Constitution Act, 1982, that "Canada is founded
upon prin-
ciples that recognize the supremacy of God and the rule of law"
is both inac-
curate as an historical matter, and insensitive to cultural
differences at least
with respect to Aboriginal peoples. 9 Contrast this preambular
statement in
the Constitution Act, 1982, with the following excerpt from a
speech of Chief
Seattle to the Governor of Washington Territory:
Your religion was written upon tables of stone by the iron
finger of your God so that
you could not forget. The Red Man could never comprehend nor
remember it. Our religion
is the traditions of our ancestors-the dreams of our old men,
given them in solemn
hours of night by the Great Spirit; and the visions of our
sachems; and it is written in
the hearts of our people.'
0
When these two statements are juxtaposed there is a certain
amount of cul-

tural dissonance which I would hope is evident even upon a
cursory reading.
We are faced with a story of monocultural dominance
suggesting that Canada
is, for purposes of constitutional analysis, to be seen as having
been estab-
lished, exclusively, on principles that recognize the supremacy
of God and
the rule of law, and left with irreconcilable differences. It seems
clear that
for the purposes of Aboriginal peoples, anything other than a
fictional read-
ing of the preamble would represent a kind of cultural
hegemony. Perhaps
the culturally hegemonic reading is accurate insofar as Canada
is believed
to have been 'founded' that is, discovered, by the dominant
culture, and the
authors of the preamble, descendents of the 'founders', share the
concep-
9. Preamble to Part 1, the Charter.
10. Parts of this speech appear in F. Turner, ed., North
American Indian Reader
(New York: Penguin Books Ltd., 1973) at 251. I selected this
speech because I believe it repre-
sents a difference between the predominant Judeo-Christian
concept of God and an Aboriginal
notion of spirituality. I am aware of the apparent disanalogy of
a statement of law and a state-
ment of religion. However, my conflation of the two
presupposes that, first, the preamble consti-
tutes a declaration of civil religion in a society no longer bound
by common denomination,
and secondly, a declaration of religion in Aboriginal society is

at the same time a declaration
of law.
TURPEL
tion that God and the rule of law reign supreme in Canadian
society.11
Aboriginal peoples would strongly contest this rendition of the
founding of
Canada, and the suggestion that their spirituality could be
incorporated under
the notion of the supremacy of God and the rule of law.
How do constitutional interpreters go about explaining the
obvious
insensitivity to cultural difference which appears in the first
passage in the
Constitution Act, 1982? Are constitutional interpreters aware of
the magni-
tude of problems with the passage? From what position of
hermeneutical
competence could these differences be reconciled? Can cultural
differences
ever be reconciled in the legal domain? Some constitutional
scholars hold
that the supremacy of God passage in the preamble was just an
accommo-
dating afterthought in the constitutional drafting process and
that it is really
of no consequence in the interpretation of substantive rights
guarantees in

the Charter.12 However, to the extent that it projects a singular
and power-
ful cultural image over the Charter, it cannot be dismissed as
insignificant.
Although it may well have been a drafting compromise, that can
be under-
stood from within the dominant Anglo-European culture, when
placed next
to the cultural understandings of Aboriginal peoples it becomes
a serious
repression of difference. Furthermore, the preamble fits too
comfortably with
other troubling hegemonic delusions like the one about the two
founding
nations, or the concept of multiculturalism within a bilingual
(French and
English) context. 13 The preamble would certainly appear to
undermine the
self-congratulatory propaganda that promotes a vision of
Canada premised
on toleration of, and respect for, cultural and linguistic
differences. 1 4 This
vision may be true in the context of cultural and linguistic
differences between
communities of European descent (i.e., French and English), but
it is of ques-
tionable legitimacy with respect to radical, non-European,
cultural differ-
ences. To what extent is the Canadian constitutional system
capable, ideo-
11. I should note at this point that my use of 'society' is with
reservation. This word,
in the sense that it represents a totality of persons and social
practices, seems repressive. The
expression Canadian 'society' is used throughout simply because

it is vernacular. The extent
to which, as a metaphor, it is used in constitutional discourse to
describe a single or describable
state of affairs is often misleadingly homogeneous.
12. D. Gibson, The Law of the Charter: General Principles
(Toronto: Carswell, 1986) at 65.
13. This is a reference to the October 8, 1971, policy statement
of then Prime Minister
Trudeau regarding multiculturalism within a bilingual
framework in which he suggests it was
"the most suitable means of assuring the cultural freedom of
Canadians." Office of the Prime
Minister, Ottawa.
14. See J. Porter, The Measure of Canadian Society: Education,
Equality and Opportu-
nity (Ottawa: Carleton University Press, 1987). Porter argues
that there has been a revival of
'ethnicity' in Canada outside of the French-English context. He
embraces the notion that Canada
is built on differences and that it is pluralistic in nature.
However, he cautions that this may
be regressive:
(1989-1990) 6 C.H.R.Y.B.
TURPEL Aboriginal Peoples and the Canadian Charter
logically, of admitting' cultural differences? Debates about
federalism and
its handmaiden, constitutional law, take place within strict
parameters which

allow only for the denial or accommodation of difference within
the dominant
construct of the 'two solitudes'. The discussion has not yet
seriously encoun-
tered the solitudes of others who are marginalized by this
bipolar
delineation. 15
(b) The Rights Paradigm
The whole fabric of rights discourse constitutes the more subtle
level
at which the undifferentiated legal framework displays its
cultural imagery.
The struggle over the division of social, political, and economic
power in
Canadian society has been formulated by the Charter as a set of
rights claims
or as a dispute over rights in order to give it constitutional
currency. Even
multiculturalism operates as an interpretive rider on rights
analysis in the
Charter. Sections 25 and 27 of the Charter, the interpretation
provisions on
Aboriginal and treaty rights and multiculturalism, are said to
take account
of cultural differences in constitutional human rights conflicts.1
6 It is signif-
icant to note that these are provisions within a rights-focused
framework of
In some respects the revival is regressive. Because it
emphasizes descent group identifi-
cation and endogamy, important principles of ethnic group
survival, it runs the risk of

believed-in biological differences becoming the basis of
invidious judgments about groups
of people ... Moreover, where ethnicity is salient there is often
an association between
ethnic differences and social class inequality. That is why much
of the discussion of the
relations between ethnic groups concerns equality, equality of
legal rights, political rights,
and in the more recent period, social rights such as education,
jobs, good health and
equality of opportunity. Class inequality becomes obscured and
more difficult to analyze
where there is ethnic heterogeneity in the social structure. This
may reflect some inadequacy
in the sociological theories of class, almost all of which assume
ethnic homogeneity. (at 121)
15. Debate over the 1987 Meech Lake Accord and rampant anti-
French crusades indi-
cates a degree of sentiment in favour of imposing only 'one
solitude.'
16. These sections provide:
Section 25: The guarantees in this Charter of certain rights and
freedoms shall not be
construed so as to abrogate or derogate from any aboriginal,
treaty or other rights or
freedoms that pertain to the aboriginal peoples of Canada
including (a) any right or free-
doms that have been recognized by the Royal Proclamation of
October 7, 1763, and
(b) any rights or freedoms that now exist by way of land claims
agreements or may be
so acquired.
Section 27: This Charter shall be interpreted in a manner

consistent with the preserva-
tion and enhancement of the multicultural heritage of
Canadians.
Also, section 35, in Part II of the Constitution Act, 1982,
provides:
(1) The existing aboriginal and treaty rights of the aboriginal
peoples of Canada are hereby
recognized and affirmed.
(2) In this Act, aboriginal peoples of Canada includes the
Indian, Inuit and M6tis peoples
of Canada.
legal analysis. Consequently, any consideration of cultural
differences sug-
gested by sections 25 or 27 will be formulated within the
predetermined mode
of reasoning, central to Anglo-European legal discourse, of
rights claims or
claims against the state. These provisions do attempt to address
differences
or "otherness", from within the dominant or prevalent method of
resolving
legal conflicts. It is noteworthy, however, that they are
construed as excep-
tional or special provisions within the rights-based dominant
style of analysis.
Hence, we are in the realm of the special, exceptional, or 'other'
in section
25, and arguably in section 27, rather than in the realm of the
fundamen-

tally different, incongruous or incommensurable. Arguments for
multicul-
turalism are particularly offensive because they presume
differences to be
'minority' matters that are manageable, interpretively, from
within the
majority-conceived scheme of the Charter. This is an aberration
to Aboriginal
people because it does not recognize the fundamental challenge
presented
by cultural difference to the rights approach to social conflicts.
17
Because the rights regime is dominant, sanctioned and elevated
as the
supreme law, it must filter all conflicts through its categories
and concep-
tual apparatus. The rights regime dominates the culturally
different inter-
pretive communities by using its own conceptual framework to
apply the pro-
visions of the Charter to "others" even though these provisions
may be
interpreted in a "special" way. It decides for those it doesn't
understand,
using a framework which undermines their objectives. It
performs a levita-
tion trick by transforming differences into rights within the
supreme law of
Canada.
To what extent can a rights paradigm of analysis be viable
universally?
Is it shared by culturally different peoples? I suggest that the
'rights' analysis

and imagery is a projection of an exclusionary cultural or
political self-image.
In situating this assertion in the context of Aboriginal peoples, I
am faced
with the fact that rights discourse has been widely appropriated
by Aboriginal
(3) For greater certainty, in subsection (1) "treaty rights"
includes rights that now exist
by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the
aboriginal and treaty rights
referred to in subsection (1) are guaranteed equally to male and
female persons.
17. As D. Sanders in "Article 27 and Aboriginal Peoples of
Canada", in the Canadian
Human Rights Foundation's Multiculturalism and the Charter: A
Legal Perspective (Toronto:
Carswell, 1987) suggests,
Frequently Indian leaders have rejected the terms "ethnic" or
"cultural minority" as
inadequate to describe the special situation of indigenous
peoples. They assert a unique-
ness which they feel is denied by terms which equate them to
Irish Catholics or Chinese.
The rejection of such categories was rather sharply put by
Brooklyn Rivera, the Miskito
Indian leader from Nicaragua, when he said "Ethnic groups run
restaurants; we are nations
of people". (at 156)
(1989-1990) 6 C.H.R.Y.B.

peoples in struggles against the effects of colonialism, and that
we have been
encouraged to do so. Here it is important to distinguish
arguments which
are made for Aboriginal peoples by legal scholars who do not
share a common
ancestry or culture with those for whom they write, from the
much smaller
body of literature by Aboriginal persons. 18 This distinction is
critical because
just as cultural difference is acknowledged, Aboriginal peoples
are faced with
a response, at least from the legal community that is ostensibly
'supportive',
which unwittingly perpetuates their domination through a false
reconcilia-
tion of differences. For example, in the introduction to a pair of
recent articles
by W. Pentney, one finds a general disclaimer to the effect that
his work
on the Charter was written from the perspective of a supporter
and that it
is entirely conceivable that many Aboriginal peoples would not
share/under-
stand his perspective. 19 However, in the text, this modesty
seems to be
effaced by the legal analysis advanced. He constructs an

argument which
18. Examples in the former category are numerous and part of a
growth industry. See,
as a sampling, Cumming, "Rights of Indigenous Peoples: A
Comparative Analysis" (1974)
68 ASIL Proc. 265; Morse, "Aboriginal Self-Government in
Australia and Canada" (Kingston:
Queen's University, Institute of Intergovernmental Relations,
1984); Sanders, "Aboriginal Peoples
and The Constitution" (1981) 19 Alberta L.R. 410; Slattery,
"The Constitutional Guarantee
of Aboriginal and Treaty Rights" (1983) 8 Queen's L.J. 232; and
Wildsmith, "Pre-Confederation
Treaties" in Morse, ed., Aboriginal Peoples and the Law,
(Ottawa: Carleton University Press,
1985), 122. Scholarship in the Aboriginal category includes, as
a sampling, B. Richardson, ed.,
Drumbeat: Anger and Renewal in Indian Country (Summerhill
Press, 1989); Manuel and Posluns,
The Fourth World: An Indian Reality (Don Mills: Collier-
Macmillan, 1974); Deloria and Lytle,
The Nations Within: The Past and Future of American Indian
Sovereignty, (New York: Pantheon
Books, 1984); Henderson, "Unraveling the Riddle of Aboriginal
Title", (1977) 5 Am. Indian
L. Rev 75; Chartier, "Aboriginal Rights and Land Issues: The
Metis Perspective" in Boldt and
Long, eds., The Quest For Justice: Aboriginal Peoples
andAboriginal Rights (Toronto: Univer-
sity of Toronto Press, 1985), 54; Monture, see infra notes 21
and 54; and Gunn-Allen, The
Sacred Hoop, (Boston: Beacon Press, 1986).
19. William Pentney, "The Rights of the Aboriginal Peoples of
Canada in the Constitu-

tion Act, 1982: Part I-The Interpretive Prism of Section 25",
(1988) 22 U.B.C. L. Rev. 21,
and "Part Il-Section 35: The Substantive Guarantee" (1988) 22
U.B.C. L. Rev. 207. Pentney
states in his introduction to Part I:
Finally, this article is founded on the supposition that it is
legitimate and appropriate
to articulate and interpret the rights of the aboriginal peoples of
Canada in a language
and in the context of an institutional structure that is non-
aboriginal. Many aboriginal
peoples reject this approach because they do not recognize the
Canadian legal and polit-
ical structure as legitimate. I do not seek to dispute that view.
The modest assumption
underlying this article is that some aboriginal peoples may find
it helpful to rely on these
provisions in support of their claims and that for these people it
is important to under-
take a principled and purposive analysis of these sections.
Furthermore, it is my hope
that this analysis will offer a useful and persuasive challenge to
the currently accepted
legal doctrines of aboriginal and treaty rights, and thus may
assist all aboriginal peoples
in the articulation of their rights in Canada and elsewhere. (at
22)
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12 Canadian Human Rights Yearbook (1989-1990) 6 C.H.R.Y.B.
by-passes cultural differences and advances a thesis which

assumes that if
only better legal tests were developed to balance collective and
individual
rights, and more care was taken to define Aboriginal rights, the
problems
with the culturally hegemonic self-image of the Charter could
be conceivably
resolved. 20 The task is frequently formulated as one of better
thinking, more
rigorous analysis, and consciousness-building in order to decide
how to
'apply' the constitution to Aboriginal peoples. This style, even,
as here, in
its best-intentioned form, has provoked frustration and criticism
from Abori-
ginal writers, many of whom would suggest that the legal
arguments simply
mask social and political conflicts between Aboriginal peoples
and the Cana-
dian state, concealing the painful experiences of Aboriginal
peoples under
bureaucratic rule. An expression of the sense of domination felt
by Aboriginal
people when someone from 'outside' the cultural framework sets
out to solve
and reconcile conflicts is expressed in an article by Patricia
Monture.
21 She
writes:
Following this tradition of oral history and storytelling, I want
to share one of my
experiences with you. Like most other academics, I spent at
least a little bit of my time
going to conferences, listening to other people, and learning and

sharing what we are
thinking. This is a story about a conference I attended, a legal
conference, that I want
to tell you. It is also a story about anger. My anger is not unique
to this conference;
it is paralleled at many other conferences I have been to and the
classes I have been to,
most other days in my life, so it is an important story . . . [She
relates her reaction to
a discussion of a racial incident] . . . This is my life. I do not
have any control over
the pain and brutality of living the life of a dispossessed person.
I cannot control when
that pain is going to enter into my life. I had gone away for this
conference quite settled
with having to deal with racism, pure and simple. But, I was not
ready to have my pain
appropriated. I am pretty possessive about my pain. It is my
pain. I worked hard for
it. Some days it is all I have. Some days it is the only thing I
can feel. Do not try to
take that away from me too. That was what was happening to
me in that discussion.
My pain was being taken away from me and put on the table and
poked and prodded
with these sticks, these hypotheticals. "Let's see what happened
next." I felt very very
much under a microscope, even if it was not my own personal
experience that was being
examined.
22
20. In Part II, ibid., he concludes by suggesting that:

The key challenge that remains is to translate the theoretical
generalities presented here
into arguments in concrete cases, for it is only by this process
that sections 25 and 35
of the Constitution Act, 1982 can serve to enhance the rights of
the aboriginal peoples
of Canada. (at 278)
And in Part I, he concludes that:
The illustrations ... should operate in a Charter case. It is an
interpretive prism, and
the refraction which it provides will protect the rights and
freedoms of the aboriginil
peoples of Canada. (at 59)
21. "Ka-Nin-Geh-Heh-Gah-E-Sa-Nonh-Yah-Gah" (1986) 2
C.J.W.L. 159.
22. Ibid., at 160 and 163-4.
Monture's description of pain at having racism discussed
dispassion-
ately, or as a technical or unconflicted analysis is interesting
because it points
to the inability of legal categories and descriptions to account
for the lived
experiences of Aboriginal peoples in Canada. Moreover, it
suggests the possi-
bility that assistance aimed at human rights progress may
actually be part
of the oppression Aboriginal peoples experience.

23
It is interesting to me that, in other disciplines, apart from law,
cultural
differences have been approached in a way which is contrary to
current legal
analyses. They have not been 'interpreted' as gaps in one's
knowledge of
a discipline or discourse, waiting to be filled with conceptual
bridges and
extensions, but rather as irreconcilable or irreducible elements
of human rela-
tions. Barbara Johnson, for example, in a recent work on
literary theory,
observes the following of her experience of difference:
If I perceive my ignorance as a gap in knowledge instead of an
imperative that changes
the very nature of what I think I know, then I do not truly
experience my ignorance.
The surprise of otherness is that moment when a new form of
ignorance is suddenly
activated as an imperative.
2
A
The perception of cultural difference as an imperative which
may loosen or
shift the paradigm of knowledge, rather than a cognitive gap to
be filled is
one which has not yet been taken seriously in legal analysis or
interpretation
vis-d-vis the cultural differences of Aboriginal peoples. What
would the impli-
cations of a Johnson-type sensibility be for legal discourse? I

contend that
it would problematize the conceptual basis of the rights-
paradigm in Cana-
23. For an explanation of this idea in another cultural context,
see A.D. Freeman, "Legi-
timizing Racial Discrimination Through Anti-discrimination
Law: A Critical Review of Supreme
Court Doctrine" (1978) 62 Minn. L. Rev. 1049. Freeman's
dialogue in his analysis attempts
to capture the ironical effect of anti-discrimination law:
THE LA W: "Black Americans, rejoice! Racial Discrimination
has now become illegal".
BLACK AMERICANS: "Great, we who have no jobs want them.
We who have lousy
jobs want better ones. We whose kids go to black schools want
to choose integrated schools
if we think that would be better for our kids, or want enough
money to make our own
schools work. We want political power roughly proportionate to
our population. And
many of us want houses in the suburbs".
THE LA W: "You can't have any of those things. You can't
assert your claim against
society in general, but only against a named discriminator, and
you've got to show that
you are an individual victim of that discrimination and that you
were intentionally dis-
criminated against. And be sure to demonstrate how that
discrimination caused your
problem, for any remedy must be coextensive with the violation.
Be careful your claim
does not impinge on some other cherished American value, like
local autonomy of the
suburbs, or previously distributed vested rights, or selection on

the basis of merit. Most
important, do not demand any remedy involving racial balance
or proportionality; to
recognize such claims would be racist". (at 1049-50, footnotes
omitted)
24. World of Difference, supra, note 3 at xi.
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dian legal analysis because concepts, such as the rule of law,
human rights,
and judicial impartiality, would be seen more as culturally-
specific beliefs
rather than universally applicable concepts. As Raymond
Williams suggests
of this shift for political theory and literature:
When the most basic concepts-the concepts, as it is said, from
which we begin-are
suddenly seen to be not concepts but problems, not analytic
problems either but historical
movements that are still unresolved, there is no sense listening
to their sonorous summons
or their resounding clashes. We have only, if we can, to recover
the substance from which
their forms were cast.
25

Williams captures, in my view, the effect of the imperative of
cultural differ-
ence. When we think of cultural differences between Aboriginal
peoples and
the Canadian state and its legal system, we must think of these
as problems
of conceptual reference for which there is no common
grounding or author-
itative foothold. Necessarily, we can't 'decide' the substance of
cultural dif-
ferences from a position of a particular institutional and
conceptual cultural
framework; each culture is capable of sensitivity to the basic
condition of
difference, and should develop cross-cultural relations
accordingly. To what
extent is the rights paradigm of constitutional analysis a
conceptual frame-
work for the toleration of, or sensitivity toward, cultural
difference? To
answer this question at least two lines of inquiry need to be
pursued: what
is the conceptual-historical basis of the rights-paradigm, and
how do

Aboriginal peoples use rights terminology?
The human rights paradigm in Canadian constitutional discourse
is
clearly a product of the political theories of natural rights
developed in Europe
during the seventeenth century. Despite recurring references to
a collectivist
orientation of society, most often cited in attempts to
differentiate Canada
from the United States, individualism arguably derived from
Locke and
Hobbes underpins the Charter.
26 While I do not want to suggest that an
exploration of the origins of the paradigm is dispositive in any
way, it does
seem significant that the rights conception developed in Europe,
and espe-
cially for Canadian constitutional purposes, in England in the
later seven-
teenth century. Moreover, the conceptual basis of rights
analysis in notions
of property and exclusive ownership are critical factors in the
tension between
rights discourse and cultural difference.

25. Marxism and Literature (Oxford: Oxford University Press,
1981) at 213.
26. Whose most important works, respectively, are: Two
Treatises of Civil Government
(1690) and Leviathan (1651). I would not want to suggest that
the same thinkers did not influence
the notion of rights in the United States. I want to highlight that
this is arguably the origin
of the rights paradigm in Canada, no doubt as influenced by
constitutional theories which evolved
in the United States on the basis of the same theories.
(1989-1990) 6 C.H.R.YF.B.
Thomas Hobbes and John Locke developed theories of 'natural
rights'
based on the argument that one key purpose for entering civil
society was
the protection of private property. Locke suggested that every
man (and
emphasis should be on man because Locke should also be
infamous for his
theory that society was naturally patriarchical) possesses a right
of property
ownership. This right, he reasoned, flowed logically from the
fact that human
beings are God's property. He argued that people enter into

'civil society'
for the central, and negatively conceived, purpose of protecting
their inter-
est or claim to private property against random attack from
other persons.
The idea of the absolute right to property, as an exclusive zone
of
ownership, capable of being transmitted through the family
(through males
according to the doctrine of 'primogenitor'), is arguably the
cornerstone of
the idea of rights in Anglo-American law. Rights are seen as a
special zone
of exclusion where the individual is protected against harm
from others.
Obviously, this is a highly individualistic and negative concept
of social life
based on the fear of attack on one's 'private' sphere. It provides
something
of a basis, however, for all ideas about rights-the idea that there
is a zone
of absolute individual right where the individual can do what
she chooses.
As Roberto Unger has suggested:
The right is a loaded gun that the rightholder may shoot at will
in his corner of town...
The property right was the very model of right generally. The
consolidated property right
had to be a zone of absolute discretion. In this zone, the
rightholder could avoid any
tangle of claims to mutual responsibility. It was natural that this
conception of right

should be extended to all rights.
27
The imagery of the property-based right to exclude surfaces
rather
revealingly in Charter rights jurisprudence. With property rights
metaphors
at hand, the Supreme Court of Canada in the recent Morgentaler
case on
the Criminal Code provisions on abortion, suggested that:
The Charter is predicated on a particular conception of the place
of the individual in
society. An individual is not a totally independent entity
disconnected from the society
in which he or she lives. Neither, however, is the individual a
mere cog in an impersonal
machine in which his or her values, goals and aspirations are
subordinated to those of
the collectivity. The individual is a bit of both. The Charter
reflects this reality by leaving
a wide range of activities and decisions open to legitimate
government control while at
the same time placing limits on the proper scope of that control.
Thus, the rights guar-
anteed in the Charter erect around each individual,
metaphorically speaking, an invisi-
ble fence over which the state will not be allowed to trespass.
The role of the courts is
to map out, piece by piece, the parameters of the fence.

28
27. Unger, The Critical Legal Studies Movement (Cambridge:
Harvard University Press,
1986) at 36 and 38.
28. Madame Justice Wilson writing in Morgentaler, Smoling &
Scott v. The Queen &
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The metaphors of the fence, mapping, and trespassings are so
property-
specific and exclusionary in character they can only be
construed as symptoms
of acute Locke-jaw.
Notions of protection from social/legal intrusion, a classical
concept
of liberty, seem to have a common conceptual origin in or nexus
with prop-
erty rights. The idea that rights are necessary to protect one's
'rightful' corner
of town, to restrain the ill-intentioned from depriving someone
of their corner,
is also an important justificatory argument for rights claims in
contemporary
legal and political theory. The extension of this notion of a
natural right to
property to other forms of social relations (and conceptions of
the private)

arguably precedes the rights paradigm formalized in the
Charter. It empha-
sizes a liberal conception of social life where the maximization
of wealth and
happiness through self-interest is the guiding creed.
Ideologically, liberal
notions of property and self-interest regulate the general
character of Cana-
dian political discourse. They are likewise evident in legal texts
and in their
interpretation where debates over individualism and
collectivism find
expression.
29
There is no polity that is purely individualistic or purely
collectivist.
A binary coupling of these characteristics implies a kind of
dialectical hier-
archy. I would suggest that the individualist description is
integrally privileged
in the rights paradigm and that collectivist considerations are
merely supple-
mentary. However, I would take issue with some scholars on
their projec-
tion of 'society' as an either-or, and caution against an attempt
to typify,
Attorney General of Canada [1988] 1 S.C.R. 30 at 164; (1988)
82 N.R. 1 at 116; and (1988)
44 D.L.R. (4th) 385 at 485.
29. 1 do not want to get embroiled in the individualist versus

collectivist description of
Canadian society. Patrick Monahan, in Politics and the
Constitution: The Charter, Federalism
and the Supreme Court of Canada (Toronto: Carswell, 1987),
has commented on this binary
opposition as:
For an individualist, life is the individual pursuit of happiness
rather than membership
in a body politic. All roads converge on the atomic, prepolitical
individual maximizing
his or her self-interest. Thus, social contract theorists like
Hobbes and Locke justified
the creation of the State by analogy to a self-interested bargain
between autonomous
individuals in a state of nature. There was little emphasis on the
possibility of the State
helping to forge communal values or common ends. The State
was necessary merely as
a means of establishing order in a universe in which the
interests of rational maximizers
inevitably collided with each other. Restraint was contractual
rather than natural ...
Within collectivism, individuals are constituted by their
membership in an organic com-
munity. Society is primarily a community of hierarchically
organized classes or groups,
rather than an association of antecedently free individuals. The
good of the individual
is not conceivable apart from some regard for the good of the
whole. Thus, restraints
on individuals are natural rather than contractual, flowing from
the very duties and rights
which are implicit in membership in a larger community. (at 92)
(1989-1990) 6 C.H.R.Y.B.

for example, an Aboriginal society in such a fashion.
30
The Canadian human rights system, and in particular the
Charter,
having been distanced in time from what I would construe as the
conceptual
basis of rights theories, that is, the natural right to individual
ownership to
property, seems a little less hostile to, and perhaps even
supportive of cultural
difference, especially since so much is said of Aboriginal
matters in the con-
text of interpretations of provisions of the Charter. Some
scholars argue
extensively that the Charter has recognized certain collective
rights, such as
Aboriginal rights and language rights, and that this has taken
legal concep-
tions of rights in Canada far beyond the 'individualistic' basis of
rights which
find their origin in property notions.
There are two aspects of the collective rights stream of legal
scholar-
ship on the Charter which I would call into question in the
context of cultural
difference. The first is the tendency to conceptualize collective
rights, and
arguments for collectivist considerations, as 'oughts': perhaps
persuasive,

but at this point only apologies for suggested directions.
Scholars in this camp
serve as wishful legislative 'spin doctors.' The second is the
extent to which
these arguments are responsive to cultural differences vis-a-vis
Aboriginal
peoples when made on their behalf, presuming that Aboriginal
peoples can
unproblematically engage in the abstract, adversarial legal
process for the
'granting' of such rights. In other words, the problem, identified
earlier, is
that of using an(other) language and conceptual apparatus (the
Canadian
legal system) to further an understanding of a different system
of belief.
On the first issue, I would suggest that if current political and
economic
arrangements are any indication, the scope for respect of
cultural differences
is more theoretical than actual in the case of Aboriginal
peoples. 3 1 The main
difference which is tolerated, albeit with considerable strain, in
Canadian
federalism is the French linguistic-cultural difference inside of
Quebec and,
to a lesser extent, outside of that province. Indeed, the tale of
two founding
nations present at Confederation, accepted uncritically in
Canadian legal dis-
30. Ibid. Although Monahan doesn't explicitly do so, his
employment of the metaphor
of society, which implies a kind of totality of Canada, would
seem to overlook cultural differ-

ences and their relation to the binary of individual versus
collective.
31. Here I would note that the scholarly legal arguments
suggesting Canada is a society
respectful of difference, and indeed built on it, are largely
reflective of a body of historical
work along the same theme. It is interesting to me that this body
of literature tends to focus
on French-English differences ("two solitudes") as the primary
cultural difference in Canada,
generally effacing the arguably more radical (non-European)
difference between either of these
cultures and the First Nations. See, for example A.R.M. Lower,
"Two Ways of Life: The Primary
Antithesis of Canadian History" in R. Cook, C. Brown and C.
Berger eds., Approaches to
Canadian History (Toronto: University of Toronto Press, 1967)
at 15; and J.M.S. Careless,
"Limited Identities in Canada" in C. Berger, ed., Contemporary
Approaches to Canadian History
(Toronto: University of Toronto Press, 1987) at 1.
TURPEL
course, while often trotted out in support of 'collective rights'
style argu-
ments, is a position particularly disrespectful of the cultural and
political
differences of Aboriginal peoples. 32 For the most part, Canada
is defined
politically as two primary and distinct cultures and languages

which form
the centerpiece of nationhood, with multiple decorator cultures
as embellish-
ing addenda. This is not to belittle the differences that have
been nominally
formalized in legislation, but to question why cultural
difference means differ-
ent compared to either or both of the two privileged solitudes.
33
One can understand why Aboriginal peoples reacted so strongly
to the
distinct society clause, section 2(1)(b), of the 1987
constitutional (Meech Lake)
accord. 34 As the Assembly of First Nations suggested in their
reaction to the
clause:
It perpetuates the idea of a duality in Canada and strengthens
the myth that the French
and English peoples are the foundation of Canada. It neglects
the original inhabitants
and distorts history. It is as if the peoples of the first nations
never existed. It suggests
that historically and presently as well the French peoples in
Quebec form the only dis-
tinct society in Canada. The amendment fails to give explicit
constitutional recognition
to the existence of first nations as distinct societies that also
form a fundamental charac-
teristic of Canada . . .We were told for five years that
governments are reluctant to
entrench undefined self-government of aboriginal peoples in the
constitution. Yet, here
is an equally vague idea of a "distinct society" unanimously

agreed to and allowed to
be left to the courts for interpretation.
35
32. See G. Manuel and M. Posluns, The Fourth World: An
Indian Reality (Don Mills:
Collier-Macmillan, 1974), who suggest that:
Why should there be a different kind of equality for us as Indian
people than for the
other groups of Canadians who share both a common history
and a common territory
in the way that a province occupies a single territory? Yet I can
only imagine that our
relationship with this land and with one another is far deeper
and more complex than
the relationship between the people of any province and their
institutions, or one another.
Nor can the Indian peoples be brushed off with the multicultural
broom to join the diverse
ethnic groups that compose the Third Element of Canada, that
is, those who are neither
French nor English. (at 219)
33. I am reminded of the bitter closing remarks of Metis leader
Jim Sinclair at the final
failed session of-First Ministers constitutional discussions on
Aboriginal Rights in March 1986
when he prophesied that the Prime Minister and Premiers who
had rejected Aboriginal peoples
would soon 'take care of their own' and bring Quebec explicitly
into constitutional agreement.
Of course, within a year, that same congenial confederation
family left Meech Lake with an
accord recognizing Quebec as a distinct society in Canada.

34. This section of the Accord provides that the Constitution of
Canada shall be inter-
preted in a manner consistent with "the recognition that Quebec
constitutes within Canada a
listinct society."
35. Assembly of First Nations Position paper on the Meech
Lake Accord, 1982
(unpublished).
Apart from the apparent subterfuge of the Meech Lake Accord,
the
collective rights position is put forth with built-in restrictions in
legal scholar-
ship. For example, Joseph Magnet, in an article on collective
rights, suggests
that:
The spirit of Canada's constitution is rooted in the principle of
bi-nationality. Canada's
federal system proceeds directly from the requirements of a bi-
national state.
36
Perhaps the tolerance of a collective difference within
Confederation is the
result of the scope of that difference. Could it be that
differences will be
tolerated, respected, and even formally enshrined provided they
are differ-

ences arising from a common (European) ancestry?
Some arguments for collective rights view them as logical
extensions
of real, that is, individual rights. In this line of reasoning,
individual rights
serve as the conceptual source of collective rights. Hence, by
common sense,
constitutional provisions that protect individual rights will
protect collectiv-
ities. Even those of such persuasion would not seriously suggest
that the
Charter is strictly (textually) an individualistic document. 37
But the extent
to which one can argue that there is any framework, conceptual
or institu-
tional, within which to seek recognition of such diverse
collective-based inter-
ests, is, in my view, very limited at present. Furthermore, the
extent to which
it would be desirable to do so, especially for Aboriginal
peoples, is question-
able given the issue raised earlier of the ability of the rights
paradigm to deal
with cultural differences. As Canada pins multiculturalism on
its chest, the
dominant European culture continues presumptively to set the
terms of toler-
ance for collective differences. Magnet suggests that:
Peoples who do not dream of national greatness together cannot
survive as a state. Changes
in the world system conspire against the multinational state as
an organizing unit of politics.
While Canada's system for sub-cultural accommodation tends to
produce dull and

uninspiring politics, it nevertheless works, fostering a growing
sense of Canadian nation-
ality, albeit slowly. The Charter makes accommodation between
sub-national commu-
nities much more exciting, but also more perilous. It is
therefore crucial to consider
entrenched collective rights carefully. We, who set the terms of
debate, should strive
to assist Courts expounding the Charter to devise a modus
operandi that will fully pro-
36. "Collective Rights, Cultural Autonomy and the Canadian
State" (1986) 32 McGill
L.J. 170 at 172.
37. The individualist-collectivist debate in many ways betrays
the descriptive poverty of
so much constitutional scholarship. Two absolutist, parable-like
claims are cast as either/or.
Evidently, scholars feel quite strongly that one or the other
should prevail. However, I would
question the validity of this restricting choice and its cultural
relativity. See Monahan, supra,
note 30 at 95, and Schwartz, First Principles, Second Thoughts:
Aboriginal Peoples, Constitu-
tional Reform and Canadian Statecraft (Montreal: Institute for
Research on Public Policy, 1986),
at 366.
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tect the collective rights of semi-autonomous minorities, while

keeping peace in the
Canadian family.
38
His position on nationalism and cautious accommodation of
'sub-
cultures', a term denoting appendage to the 'constituent
cultures', presup-
poses an interpretive position from which cultural differences
may be tamed.
The collective assertions of rights are somehow exceptional and
need to be
balanced as against the more fundamental value of keeping
peace in the Cana-
dian family. It is difficult for Aboriginal peoples to dream of
national great-
ness together with Canada when the visions of nationhood differ
so pro-
foundly, when the criteria of greatness are at odds. It is
especially difficult
to dream of national greatness when the terms of the dream are
set out for
you. When Magnet suggests that "we, who set the terms of the
debate, should
strive to assist Courts . . . " it is easy to see where and how
terms are set
for legal analysis: they are set by lawyers, skilled in the abstract
and technical
practices of a profession which has a definite cultural location.
Magnet identifies the limits to collective rights discussion in
Canada
legal scholarship and practice as follows:
The values advanced by collective rights have limits. These are

dictated by two overarch-
ing needs of the central state: to promote good relations
between sub-cultural communi-
ties and to foster a sense of national spirit.
39
Again, it is my impression that collective rights are assertions
within a para-
digm of individual rights, on the one hand, and nationalism or
overriding
national interest, on the other. There is little space within the
confines of
these conceptions to take interest in or recognition of the
cultural differences
among Aboriginal peoples, let alone differences in the
conception of a legal
order. It is, therefore, not surprising that, because of the
restrictions inherent
in the framework for rights defined by the single state,
indigenous peoples
focus on the international recognition of "rights". 4° The legal
textual and
interpretive context in which collective rights would have to be
advanced is
so foreign to Aboriginal peoples, so abstract and removed from
their own
38. Supra, note 36, at 175.
39. Ibid., at 177.
40. As Richard Falk observes, "The Rights of Peoples (In
Particular Indigenous Peoples)"
in J. Crawford, ed., The Rights of Peoples (Oxford: Clarendon
Press, 1988):

For one thing, indigenous peoples, to the extent that they centre
their grievances around
encroachments upon their collective identity, represent a
competing nationalism within
the boundaries of the State. Such claims, posited in a variety of
forms, challenge two
fundamental statist notions-that of territorial sovereignty, and
that of a unified 'nation-
ality' juridically administered by governmental organs. (at 18)
(1989-1990) 6 C.H.R.Y.B.
social or political context, that simply making a claim requires
accepting the
dominant cultural and conceptual framework.
Perhaps Magnet presupposes cultural differences, at least
implicitly,
when he suggests:
Collective rights litigation is adversarial. Litigation invites
smart lawyers and subtle strata-
gems. Community is pitted against community, majority against
minority, often in a
battle for survival. The history of collective rights litigation in
the Canadian courts is
a history of deep and lasting bitterness.
4 1
His comments refer mostly to linguistic and cultural
differences/bitterness

of the 'bi-national' character he identified (French-English). The
adversarial
character of collective rights litigation in which Aboriginal
peoples are
involved is likely more pronounced than litigation opposing
francophones
and anglophones because their differences make them even
more marginal
and they are perceived as particularly threatening. Of course,
the adversari-
al nature of the legal system is not confined to collective rights
conflicts,
although these are obvious occasions for it.
42
The cultural framework for collective rights claims is
predisposed to
insensitivity to the cultural system which Aboriginal peoples
believe in and
live by. 43 Why should Aboriginal peoples have or want to fit
their aspira-
tions into the dominant and imposed constitutional framework
of the Charter
or section 35 of Part II of the Constitution Act, 1982? An
interesting anal-
ogy here is the experience of new, non-Western states with the
international
human rights system. The philosophical basis of international
human rights
41. Supra, note 38 at 174.
42. In the recent Supreme Court of Canada decision in Borowski
v. A.G. Canada and
Interfaith, Coalition on the Rights and Wellbeing of Women and

Children, R.E.A.L. Women
of Canada and Women's Legal Education and Action Fund,
[1989] 1 S.C.R. 342, Mr. Justice
Sopinka observed that:
The requirement of an adversarial context is a fundamental tenet
of our legal system
and helps guarantee that issues are well and fully argued by
parties who have a stake
in the outcome. It is apparent that this requirement may be
satisfied if, despite the cessa-
tion of a live controversy, the necessary adversarial relationship
will nevertheless prevail
... (at 358-9)
43. Some scholars argue (or presume) that this framework is not
so alien or limiting because
Aboriginal peoples have changed and are now more willing to
take on the legal system on its
own terms. This type of argument is based on an ignorance of
and insensitivity toward the pro-
found cultural differences between Aboriginal peoples and the
dominant (French-English) society.
As Manuel, supra, note 32, suggests:
When anthropologists, government officials, and churchmen
have argued that our ways
have been lost to us, they are fulfilling one of their own tribal
rituals-wish fulfilment.
(at 216)
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instruments, like their Canadian counterparts, is considered to
be too indi-
vidualistic and European and simply not applicable to new
states. These states
have suggested that the denial of this reality perpetuates neo-
colonialism in
a new form. International lawyers are, of necessity, becoming
sensitive to
ideological or cultural differences over the international human
rights
paradigm:
It is becoming increasingly evident that the Western political
philosophy upon which the
[United Nations] Charter and the Declaration are based provides
only one particular inter-
pretation of human rights, and that this Western notion may not
be successfully applic-
able to non-Western areas for several reasons: ideological
differences whereby economic
rights are given priority over individual civil and political
rights and cultural differences
whereby the philosophic underpinnings defining human nature
and the relationship of
individuals to others and to society are markedly at variance
with Western individual-
ism ... it is evident that in most states in the world, human
rights as defined by the
West are rejected or, more accurately, are meaningless. Most
states do not have a cultural
heritage of individualism, and the doctrines of inalienable
human rights have been neither
disseminated nor assimilated.
44

My reading of Canadian law leads me to believe that the
individual
property basis of human rights is still with us and that it is
revealed clearly
in the text of the Charter, as well as in recent cases which have
been decided
under the Charter. For example, Chief Justice Desch~nes of the
Quebec Court
of Appeal, in Quebec Protestant School Boards v. A.G. Quebec,
said this
of the Province's argument that it had a 'collective' right to
direct education
policy:
Quebec's argument puts forward a totalitarian view of society to
which the Court does
not subscribe. Human beings are, to us, of paramount
importance and nothing should
be allowed to diminish the respect due to them. Other societies
place the collectivity above
the individual. They use the Kolkhoze steamroller and see merit
only in the collective
result even if individuals must be destroyed in the process. This
concept of society has
never taken root here . . . and this Court will not honour it with
its approval.
45
The language of the Charter refers to the human rights enjoyed
by 'every
citizen of Canada', 'everyone', 'every individual', 'any person',
etc. The
section of the Charter on enforcement applies to "[a] nyone
whose rights or

freedoms . . . have been infringed", permitting them to apply to
a court for
44. A. Pollis and P. Schwab, eds., Human Rights: Cultural and
Ideological Perspec-
tives (New York: Praeger Publishers, 1980), at 1 and 13; see
also G. Triggs, "The Rights of
'Peoples' and Individual Rights: Conflict or Harmony?" in J.
Crawford, ed., The Rights of
Peoples, supra, note 40 at 141.
45. [1942] C.S. 673 at 692, 140 D.L.R. (3d) 33 at 64, aff'd.
[1984] 2 S.C.R. 66, 10 D.L.R.
(4th) 321. The Supreme Court did not expressly comment on
C.J. Deschne's obiter dicta.
the order the court considers appropriate in the circumstances-
almost always
the singular subject.
The extent to which a human rights law intended to protect
mainly indi-
vidual rights can be interpreted as including either a collectivist
understand-
ing of these rights, or collective rights, is dubious. There are no
conceptual
directions leading from the Charter, in legal literature or in
Canadian history
to support a collectivist idea of rights for culturally distinct
(non-European)
peoples, if such a theory is conceivable, or the toleration of a
community

organized around collective and divergent (non-European)
values. When cases
involving Aboriginal peoples come before the courts, it is
doubtful that differ-
ent standards of legal analysis will be or could be applied.
46
A traditional concern with respect to the conceptual and
institutional
framework for judging rights claims is the elitist and culturally-
specific (Euro-
pean) character of the court. This concern involves both the
issue of the cultur-
al difference which arises because such a formalized adversarial
and imper-
sonal institution is unknown amongst Aboriginal peoples, 47
and the political
problem of cultural hegemony raised by the fact that the
representatives of
the dominant (settler) communities write and 'interpret' the law
for all Cana-
dians, and do so within a conceptual framework of rights
derived from the
theory of a natural right to private property. The criticism of the
judiciary
and the judicial role post-1982 is hardly novel although it is
reasonable to
suggest that the problems are more pronounced in this context.
48 As
A.W. MacKay notes generally on the context of the Charter:
What influences a judge in making a choice, where he or she is
not bound by some rule?
This question is more important when one notes that there are
very few rules that can

bind an innovative judge. Choices are more often the result of a
balancing of competing
46. An interesting exception to this prediction in the recent
Provincial Court judgment
of Mr. Justice Igloliorte of the Newfoundland and Labrador
Provincial Court in R. v. Ashini
(unreported, April 18, 1989), a criminal case involving charges
arising from protests by the Innu
of low-level flight activity over Labrador, which suggests that
the Innu conception of their land
and their relationship to the land had to be considered by the
Canadian legal system. Mr. Justice
Igloliorte states:
Since the concept of land as property is a concept foreign to
original people the Court
must not assume that a "reasonable belief" be founded on
English and hence Canadian
law standards. The Innu must be allowed to express their
understanding of a foreign
concept on their terms, or simply to express what they believe.
This decision was overturned on appeal, without comment on
this aspect of the judgment,
November 1989.
47. See M. Coyle, "Traditional Indian Justice in Ontario: A
Role for the Present" (1986)
24 O.H.L.L. 605.
48. See A.W. Mackay, "For Whom Does the Charter Toll" in
Boyle, MacKay, McBride,
Yogis, eds., Charterwatch: Reflections on Equality (1986) 10
Dalhousie L.J. at 35.

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values, and that is what the Charter invites. It is less clear
where these values will come
from-society at large, established society, legal society or the
individual judge. The choice
of what values to consult is personal.
49
If choices are personal (and therefore cultural), can the judge
weigh a value
system which is culturally different? Can a judge know a value
which is part
of an Aboriginal culture and not of her own? The extent to
which anyone
can know the basic differences as opposed to identifying
difference, espe-
cially when functioning in an institutional role defined as
deciding the supreme
law of a state is a fundamental problem for constitutional
analysis. This is
especially the case with respect to choices regarding different
cultural systems
because the knowledge structures valued by the Canadian
judicial system
are fundamentally different from the knowledge structures
embraced by
Aboriginal peoples.
I would seriously question whether differences can be or should

be put
before the court as evidence of the court's lack of authority,
culturally. By
placing this before the court, and by accepting the substantive
jurisdiction
of the court over a dispute or claim, cultural differences may be
seen as simply
racial differences to be managed within legal discourse and not
as cultural
differences. Nevertheless, some lawyers see this as a viable
strategy. "The
first task in advancing cases involving Aboriginal rights
through Canadian
courts is to make the different world view of the Indian Nations
visible."
50
However, I would query how, by whom, and to what end? Once
again,
cultural differences are not such that they can be managed
within the
dominant legal conceptual-framework. There are huge
epistemological
problems which would make this technique appear even more
hegemonic in
that to try to understand in that context is to deny even more
fully the implica-
tions of cultural difference. J.F. Lyotard has expressed
epistemological
differences in the following way:
There is, then, an incommensurability between popular narrative
programmatics, which
provide immediate legitimation, and the language game known
to the west as the ques-

tion of legitimacy-or rather, legitimacy as a referent in the game
of inquiry. Narra-
tives, as we have seen, determine criteria of competence and/or
illustrate how they are
to be applied. They thus define what has the right to be said and
done in the culture
in question, and since they are themselves a part of that culture,
they are legitimated
by the simple fact that they do what they do.
51
49. Ibid., at 93-4 (footnotes omitted).
50. L. Mandell, "Native Culture on Trial, Judicial Insensitivity
to Native Culture" [pub.
data] at 359.
51. Supra, note 3, at 23. Lyotard contrasts two epistemological
models, the program-
matics of narrative knowledge and the pragmatics of scientific
knowledge. This distinction, in
my view, goes some distance toward capturing an element of
cultural difference on which this
article has focussed.
(1989-1990) 6 C.H.R. Y.B.
Sensitivity to cultural difference is sensitivity to the limitation
of the capacity
to know. The first question should be 'can I judge', or self-
judgment. Cul-

tural difference, especially in this context of the differences
between European
and non-European cultures, problematizes political legitimacy
and cultural
authority in legal analysis. If value choices can be seen to be
culturally-located
then decisions can be seen to be especially loaded politically,
and judging
to require, of necessity, an analysis of the cultural pre-
disposition of the judge
before anything else. 52 Otherwise, the legitimacy of judging
(the knowing
and reasoning part) is nothing more than the power of the
dominant culture
to impose its knowledge-structure and cultural system upon an
artificial
totality like Canadian 'society' 5
The larger significance of cultural difference, in my view, is the
extent
to which it reveals a lack of interpretive authority in legal
reasoning and
decision-making and the extent to which it problematizes the
rule of law as
one particular cultural expression of social life. As a
consequence, judging
is a problem, not simply an accepted institutional function. As I
suggested
earlier in discussing Johnson, experiencing cultural difference
(as contrasted
with 'knowing' difference) is identifying an imperative that
changes the very
"nature of what I think I know." This experience does not
involve the grasp-
ing of the allegedly gripping conflict between individual and
community, or

self and other, or collective and individual rights. It involves
the recognition
of the imperative which forces a rethinking of the cultural or
interpretive
authority for even those binary groupings.
The denial of difference is a political tool of cultural hegemony.
It
involves the legalization and entrenchment of politics in a
particularly
hegemonic way. As Michael Mandel has argued, in this regard:
The experience of Canada's aboriginal peoples is another
refutation of any pretensions
legalized politics might have to redressing major Canadian
injustices. In effect, the
aboriginal peoples tried to hijack the Charter enterprise to
address their claims to the
economic and political wherewithal for communal survival. But
the Charter is highly
resistant to hijacking. Its offer is strictly limited to formal equal
citizenship, meant not
to redress the balance of power but to legitimate it. Only
individuals need apply. They
can bring with them all the property they can muster, but no
groups are allowed. Canada's
aboriginal peoples are too far and too thoroughly removed from
the material and cultural
52. B. Johnson suggests in The Critical Difference (Baltimore:
Johns Hopkins University
Press, 1980), that:
What this means is that every judge is in the impossible position
of having to include
the effects of his own act of judging within the cognitive

context of his decision. The
question of the nature of the type of historical causality that
would govern such effects
can neither be decided nor ignored. (at 108)
53. See, for an exploration of the influence of difference on
judging, P. Monture, "A
Vicious Circle: Child Welfare and the First Nations" (1989) 3
C.S.W.L. 1.
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presuppositions of this deal ever to be more than fleetingly
attracted to it. It is some-
thing they have consistently tried to oppose. Not that opposing
the legalization of politics
is an easy matter. The aboriginal peoples were not allowed to
opt out of the Charter
any more than Quebec was-even less, because they had no
section 33 to turn to. From
the way the courts have been behaving under the Charter, it
seems they could have used
one.
54
The rights paradigm is a legal structure with profound political
impli-

cations for Aboriginal peoples. Yet it is a paradigm largely
insensitive to its
own particular cultural self-image. To reverse this legal
scholarship one has
to start to question fundamentally its grounding. As D. Cottom
suggests,
"to analyze culture as this lack of interpretive authority is to
make reading
[judging], which is always a political exercise, a deliberate
interrogation of
its own political nature.
' ' 55
To sidestep this problem of cultural or interpretive authority in
judging,
especially when 'litigating the values of a nation', is politically
oppressive.
One can cite a variety of 'progressive' judicial statements on
collective rights
to round out the valuation of individual rights in Charter
analysis;
56 but this
will never reach the more basic interpretive challenge raised by
the cultural
differences among Aboriginal peoples and the dominant (Anglo-
European)
society.
Within that paradigm of rhetorical arguments of individual
versus col-
lective rights, the insensitivity or ignorance of cultural

difference is rather
boggling: in an early decision, involving Aboriginal persons,
the Federal Court
of Appeal, in a judgment written by Mr. Justice MacGuigan,
took the view
that "in the absence of legal provisions to the contrary, the
interests of individ-
ual persons will be deemed to have precedence over collective
rights. In the
absence of law to the contrary, this must be as true of Indian
Canadians
54. See Michael Mandel, The Charter of Rights and the
Legalization of Politics in Canada
(Toronto: Wall & Thompson, 1989) at 252-3.
55. D. Cottom, "Ethnographia Mundi", in Text and Culture: The
Politics of Interpre-
tation (Minneapolis: University of Minnesota Press, 1989) at
86.
56. A popular one is from R. v. Oakes, [1986] 1 S.C.R. 103; 24
C.C.C. (3d) 321 in which
Chief Justice Dickson stated:
The Court must be guided by the values and principles essential
to a free and democratic
society which I believe embody, to name but a few, respect for
the inherent dignity of
the human person, commitment to social justice and equality,

accommodation of a wide
variety of beliefs, respect for culture and group identity, and
faith in social and political
institutions which enhance the participation of individuals and
groups in society. The
underlying values and principles of a free and democratic
society are the genesis of the
rights and freedoms guaranteed by the Charter and the ultimate
standard against which
a limit on a right of freedom must be shown, despite its effect,
to be reasonable and
demonstrably justified. (at 136)
(1989-1990) 6 C.H.R.Y.B.
as of others." 57 Of course, as long as law writing is culturally
monopolized,
there will always be an "absence of law to the contrary."
The area of language rights is said to be a cornerstone of
collective rights
imagery in Charter analysis. The Supreme Court of Canada, in
the recent
case involving Quebec's former Bill 101 indicated that the basic
understand-
ing of this right is both individual and collective: "Language
itself indicates

a means by which a people may express its cultural identity. It
is also the
means by which the individual expresses his or her personal
identity and sense
of individuality.''58 This is interesting because the notion of the
collective
seems to be an extension of the individual right. Hence, if
language rights
are collective rights by virtue of extending the analysis from the
individual
outward, then it will be easy to find that individual rights are
paramount
to collective rights.5 9 How to go about reconciling these two
images of rights
when they conflict is no easy task, and the Court gives little
guidance here
on its view of collective rights-except to say that the
individual's right to
speak a language must be protected at law against the
community's prohi-
bition of that language.
Even in the venerated area of equality rights, as recognized in
section 15
of the Charter, the text applies to "every individual." This
provision has
been interpreted by the courts not as a general recognition of
the idea of
equality, which, if read as 'sameness' or equivalence, would be
deeply dis-
turbing to Aboriginal peoples but simply as a principle relating
to the appli-
cation of given laws. In a recent equality case in the Supreme
Court of
Canada, Mr. Justice McIntyre stated that section 15 "is not a
general guar-

antee of equality, it does not provide for equality between
individuals or
groups within society in a general or abstract sense, nor does it
impose on
individuals or groups an obligation to accord equality treatment
to others.
It is concerned with the application of the law. " 6 The scope
for Aboriginal
rights claims under section 15 is limited because any theory of
equality which
the court is likely to accept will always be comparative, even if
'identical
treatment' is not the persuasive legal test. Hence, Mr. Justice
McIntyre
suggests that equality
[i]s a comparative concept, the condition of which may only be
attained or discerned
by comparison with the condition of others in the social and
political setting in which
57. Boyer v. Canada, (1986), 65 N.R. 305 at 315.
58. Attorney General of Quebec v. La Chaussure Brown's Inc et.
al., [1988] 2 S.C.R.
712, at 721.
59. See J.D. Capulo, Radical Hermeneutics: Repetition,
Deconstruction and the
Hermeneutic Project (Indianapolis: Indiana University Press,
1987).
60. Andrews v. Law Society of British Columbia et al.,-[1989] 1
S.C.R. 143 at 163
(emphasis added).

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the question arises. It must be recognized at once, however, that
every difference in treat-
ment between individuals under the law will not necessarily
result in inequality and, as
well, that identical treatment may frequently produce serious
inequality... To approach
the ideal of full equality before and under the law-and in human
affairs an approach
is all that can be expected-the main consideration must be the
impact of the law on
the individual or the group concerned. Recognizing that there
will always be an infinite
variety of personal characteristics, capacities, entitlements and
merits among those subject
to a law, there must be accorded, as nearly as may be possible,
an equality of benefit
and protection and no more of the restrictions, penalties or
burdens imposed upon one
than another. In other words, the admittedly unattainable ideal
should be that a law
expressed to bind all should not because of irrelevant personal
differences have a more
burdensome or less beneficial impact on one than another.
6'
Equality rights analysis, even though it embraces a
consideration of

the "impact" of the law on groups can only be sensitive to
cultural differ-
ence with respect to Aboriginal peoples if it is not comparative,
in the sense
of comparing the treatment of a non-Aboriginal group with an
Aboriginal
group. In order to be sensitive, the court would have to allow
for the fact
that an entirely different conceptual framework may apply and
that they (the
judiciary) are not capable of knowing or reconciling
differences. This is some-
thing more than shielding Aboriginal peoples from general
rights interpreta-
tions (through section 25). It requires a sensitivity to the
relativity of cultural
understandings, with this notion of shielding.
It is troubling that Aboriginal peoples have few choices but to
advance
their differences as rights claims under the Charter in order to
avoid ethno-
cidal government action. 62 Even where an action is brought by
an Aborigi-
nal group pursuant to the Charter,63 the results, given cultural
predisposi-
tion of the Charter, are unlikely to be favourable. As Noel Lyon
has argued:
The problem here is that the Charter expresses the values of a
liberal democracy on the
European model. It favours individualism and assumes a highly
organized and impersonal
industrial society. To apply values to native societies is to
destroy them .... 64

61. Ibid., at 164-5.
62. To my knowledge, such claims are few to date. An
important example would be the
recent application filed by the Innu for an injunction to stop
low-level flights over their terri-
tory. (November 6, 1989, Federal Court, Trial Division) They
are arguing that their rights
enshrined in sections 7 and 15 of the Charter were infringed by
the Federal government in granting
permission for low-level flights and training exercises by NATO
Forces stationed at CFB Goose
Bay. This case will provide an interesting opportunity to test my
argument that the scope for
cultural differences or Aboriginal "rights" within the framework
of the Charter is limited.
63. The case of Twinn et al v. Canada, (1987) 80 N.R. 263, is
the most notorious of
the positive assertions within the rights paradigm.
64. Noel Lyon, "Section 25 of the Canadian Charter of Rights
and Freedoms" in Current
Issues in Aboriginal and Treaty Rights, as cited in Bruce
Wildsmith, Aboriginal Peoples and
Section 25 of the Canadian Charter ofRights and Freedoms
(Saskatoon: University of Saskat-
chewan Native Law Centre, 1988) at 21.
(1989-1990) 6 C.H.R. Y.B.

The risks inherent in formulating an appeal for recognition of
cultural differ-
ence in terms acceptable to the rights paradigm of the Canadian
constitu-
tion are high. This is a question of strategy and choice which I
am certainly
not in a position to resolve. I would only suggest that the
cultural limitations
from the Aboriginal side are clear and that, conversely, the
imperative to
rethink legal interpretation in light of cultural difference is
obvious.
(ii) SOME AREAS OF DIFFERENCE
Although there is no culture or system of beliefs shared by all
Aboriginal
peoples, the paradigm of rights based conceptually on the
prototype of right
of individual ownership of property is antithetical to the
widely-shared under-
standing of creation and stewardship responsibilities of First
Nations Peoples
for the land, for Mother Earth. Moreover, to my knowledge,
there are no
narratives among Aboriginal peoples of living together for the
purposes of
protecting an individual interest in property. Aboriginal cultures
are oral and
the differences between these cultures and European cultures
can be found
in stories voiced through generations, and in customary laws
sometimes repre-
sented by wampum belts, sacred pipes, medicine bundles, or
rock paintings.
Social life is based upon responsibilities to creation and to the

Creator. For
example two Mohawk women have said the following of their
understanding
of the 'law':
We have a law that came from the creator and in that law was
absolutely everything
that we needed! Kanien'kehd:ka call it the KAIANERE'KO:WA.
Some people call it
the Great Law, or the Great Law of Peace, and it is. This law,
our law, does not define
'rights'; it does not defend 'rights'. In our ways, there are no
'rights', only responsibili-
ties: to observe the clans, to bring honour, trust, friendship and
respect; to share; to
be kind, honest and knowledgeable; to maintain a relationship
with all of the natural
world.
65
Moreover, some First Nations base social interaction on the
various
teachings of the Four Directions that life is based on four
principles-roughly
translated as trust, kindness, sharing and strength. These are
responsibilities
which each person owes to others representing the larger
function of social
life, that is, to live in balance in order to honour and respect
Mother Earth.
There is no equivalent of 'rights' here because there is no
equivalent to the
ownership of private property, and no equivalent to private or
exclusionary
spheres of social life. Oren Lyons has articulated an Aboriginal

understanding
of Aboriginal rights, which he describes as follows:
65. 'Our World', according to Osennontion and Skonaganichira,
see KANIEN'KE HA:KA
WOMEN, (1989), 10 Canadian Journal of Women Studies 7.
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They [Aboriginal rights] are the law of the Creator. That is why
we are here; he puts
us in this land. He did not put the white people here; he put us
here with our families,
and by that I mean the bears, the deer, and the other animals.
We are the aboriginal
people and we have the right to look after all life on this earth.
We share land in com-
mon, not only among ourselves but with the animals and
everything that lives in our
land. It is our responsibility. Each generation must fulfil its
responsibility under the law
of the Creator.
66
The collective or communal basis of Aboriginal life does not
really, to my
knowledge, have a parallel to individual rights: the conceptions
of law are

simply incommensurable. The duty to the Creator is the duty of
the people.
There are no "rights". To try to explain to an Elder that under
Canadian
law there are carefully worked-out doctrines pertaining to who
has proprietary
interests in every centimeter of the territory, sky, ocean, ideas
and various
other relationships would provoke disbelief and profound
skepticism.
The rights paradigm, whether it be articulated in terms of legal
or polit-
ical rights, or through civil conceptions of a consolidated
property right, is
simply a historically and culturally specific mechanism for the
resolution of
disputes and the allocation of resources which is different from
the proce-
dures used in any of the various Aboriginal cultures. I want to
make my argu-
ment clear. Defining Aboriginal cultures at the high level of
generality or
abstraction used by academics would assure an ability to
capture differences
between Aboriginal cultural systems in the language and
conceptual imagery
of the dominant culture. This would be highly insensitive to

differences
between Aboriginal cultural systems. My two main contentions
are that, first,
cultural differences are also differences between ways of
knowing, describing
or understanding and that, second, cultural differences are
differences among
even the 'other' cultures. Consequently, a descriptive analysis of
the differ-
ences between cultures, as contrasted with an analysis directed
toward raising
sensitivity or a sensibility of cultural differences, is an
impossibility. Although
anthropologists have been cataloguing differences for many
generations, the
cataloguing reveals more about the cataloguer than the subject.
67 The whole
methodology of the ethnographer or social anthropologist,
whether she is
interested in something distinctively 'legal'
68 or otherwise, is a method of
66. "Traditional Native Philosophies Relating to Aboriginal
Rights" in Boldt and Long,
eds., The Quesifor Justice: Aboriginal Peoples and Aboriginal
Rights, supra, note 18 at 19-20.

67. See, for an analysis of this, Clifford Geertz, "From the
Native's Point of View: On
the Nature of Anthropological Understanding" in Local
Knowledge (New York: Basic Books
Inc., 1983) at 56; and, James Clifford, Predicament of Culture
(Cambridge: Harvard University
Press, 1986).
68. For an example of a social anthropological approach to law
see K. Llewellyn and
E.A. Hoebel, The Cheyenne Way (Norman: University of
Oklahoma Press, 1941).
(1989-1990) 6 C.H.R. Y.B.
objectifying, describing and valourizing the 'other': a
methodology distinctly
cultural, that is unproblematically subject-object structured.
Because I have
trouble with the corruptibility or cultural relativity of this
methodology which
taints the analysis and its teleology, I want to avoid reproducing
it in my
consideration of difference in this context. However, I would
like to explore
the differences that orient my understanding of Aboriginal
peoples' usage
of rights talk and of the imposed rights paradigm I have been
considering.
What is 'going-on' when Aboriginal peoples make rights claims
and how does

this depart from the rights paradigm established by the
Canadian constitu-
tional system?
The contemporary world of Aboriginal politics and scholarship
by
lawyers on Aboriginal peoples is particularly studded with
discussions about
rights-the right to self-government, the right to title to land, the
right to
equality, the right to social services, and the right to practice
spiritual beliefs.
None of this is very new nor, in my opinion, surprising given
that the legal
and post-contact theological literature has been focussed, since
the sixteenth
century, on the 'rights' of Aboriginal peoples or, perhaps more
accurately,
on what was right for them. The earliest works on newly
'discovered' peoples
were concerned primarily with how the colonial powers (Spain)
should treat
the un-Christian and savage peoples 'discovered' in America. 69
Vitoria, the most notorious of the Spanish theologians who
wrote on
the so-called newly discovered peoples, structured his analysis
of the treat-
ment of 'Indians' in terms of natural law and on notions of
absolute 'rights'
or 'wrongs'. As Kennedy argues:
To Vitoria, Indian tribes are entities with legitimate public title
within their territory.
This title, or ability to act as sovereign, is subject to the moral
order which requires sover-

eigns to permit free intercourse and propagation of the faith.
Any attempt to violate
these divinely revealed 'rights' terminates their public title and
enables the Spaniards to
use whatever force seems necessary to enforce the divine order.
70
This is a significant historical point in coming to understand
why Aboriginal-
European relations were placed within the context of rights,
legal or other-
wise (i.e., divine). Since the 'discovery' captured the
imagination of European
scholars, the conceptualization of Aboriginal culture has been in
terms of
European (Christian) legal/moral categories, including notions
of rights, such
as the 'right' to property or the 'right' to have the Christian faith
put before
69. See, for example, Bartolom6 De La Casas, The Tears of the
Indian, (1656) (Trans.
Phillip, 1932), and Vitoria, De Indis et De Juri Belli:
Relectiones (Cologne & Frankfurt, 1696)
(Trans. Nys, 1917). For a discussion of Vitoria see, generally,
David Kennedy, "Primitive Legal
Scholarship" (1986) 27 Harvard International L.J. 1.
70. Ibid., at 23.
TURPEL

Aboriginal peoples. 71 Moreover, Kennedy suggests from his
reading of
Vitoria that:
he presumes throughout this argument that whatever consensual
power the Indians have
to alienate their public title is governed by natural law notions
of legitimate consent.
Their consent must be uncoerced, informed, etc. Moreover, the
ability of the Indian lords
and people to consent to alienation of Indian lands is governed
by the reciprocal respon-
sibilities of sovereigns and citizenry under the natural law that
establishes and limits sover-
eign authority.
72
Vitoria imagines that the Indians are just like Europeans in their
legal sensi-
bility; consequently, he can suggest that consent and other
legal/moral
doctrines can be used to describe conflict in the new world and
prescribe
appropriate treatment.
Vitoria's scholarship was clearly not preoccupied with problems
of cul-

tural difference. However, it has, more or less, been considered
supportive,
laudatory, and persuasive in modern legal writing on Aboriginal
peoples.
7 3
Whether or not there is any connection between Vitoria's world,
modern legal
scholarship, or the character of the claims now being asserted
by Aboriginal
71. Vitoria, supra, note 69 suggests:
If the Christian faith be put before the aborigines with
demonstration, that is, with demon-
strable and reasonable arguments, and this be accompanied by
an upright life, well-ordered
according to the law of nature (an argument which weighs much
in confirmation of the
truth), and this be done not once only and perfunctorily, but
diligently and zealously,
the aborigines are bound to receive the faith of Christ under
penalty of mortal sin. This
is proved by the third proposition, for, if they are bound to hear,
they are in conse-
quence bound also to acquiesce in what they hear, if it be
reasonable. This is abundantly

clear from the passage (St. Mark, last ch.): "Go ye out into all
the world, preach the
Gospel to every creature whoso believeth and is baptized shall
be saved, but whoso believeth
not shall be damned" and by the passage (Acts, ch. 4): "No
other name is given unto
man whereby we can be saved." (at 121 and 126)
72. Kennedy, supra, note 69 at 27. He continues, at 28, with the
following description:
Generally, for each wrong which the Indians might commit, the
Spaniards assert some
right. As in the case of consent, they must make sure the
Indians know what they are
doing so as not to elicit a mistaken response. Again, the Indian
authority is limited, as
it is justified, by Vitoria's sense of natural law, under which
unconscious or confused
exercises of Indian will are not effective to establish an
avengeable wrong. Should the
Indians persist in violating a Spanish right, they automatically
forfeit their public title
to the Spanish. The mechanism of enforcement for this transfer
is just war, which the
Spanish may wage on the now title-less Indians. The Spanish
power is limited to instances
where a wrong has actually been committed by the Indians. If
the Indians did not know
what they were doing, for example, the Spanish might be

wronging the Indians or upset-
ting the natural law relationship between Indian sovereigns and
citizenry.
73. See M. Davies, "Aspects of Aboriginal Rights in
International Law" in B. Morse,
ed., Aboriginal Peoples and the Law, supra, note 18 at 16.
Davies suggests that:
(1989-1990) 6 C.H.R. Y.B.
peoples, has not been seriously scrutinized. Consequently,
rights talk has never
seriously been questioned in this context either.
Many human rights scholars would argue that there have been
no real
advances in 'rights' for Aboriginal peoples in America since the
sixteenth
century. However to seek progress in 'rights' terms, of course,
presupposes
the acceptance or fit of this paradigm. In my opinion, when
Aboriginal
peoples discuss rights and borrow the rhetoric of human rights
in contem-
porary struggles, they are using the discourse of human rights,
both within
Canada and internationally, as an instrument for the recognition
of historical

claims of cultural difference. In many cases, they appropriate
this concep-
tual framework as the only (or last) resort without sharing or
accepting the
distinctly Western and liberal political vision of human rights
concepts.
Underlying the use of human rights terminology or the
framework of
rights claims is a plea for recognition of a different way of life,
a different
idea of community, of politics, of spirituality, differences which
have existed,
in the view of Aboriginal peoples, since time immemorial, but
which have
been cast as differences to be repressed or transformed since
colonialization.
Aboriginal rights claims are, in my view, requests for the
recognition by the
dominant (European) culture of the existence of another, and for
toleration
of, and respect for, the practical obstacles that the request
brings with it.
While this may be cloaked in rights talk, there is something at
stake which
is larger than rights, and which is conceivably outside of the
texts of particular
documents intended to guarantee human rights, such as the
Charter, or Part
II of the Constitution Act, 1982. What is at stake is a more
basic, less 'legal-
ized' condition of survival: the dignity of existing as Peoples.
I would argue that from early colonization until the present
time, no

government or monarch has ever genuinely recognized
Aboriginal peoples
as distinct Peoples with cultures different from, but not inferior
to, their
own. Aboriginal peoples have not been viewed by the dominant
culture as
peoples whose ways of life should be tolerated or respected
except in the most
paternalistic and oppressive terms.
74
The reasons for this are varied. There is racism, whether
intentional
or not. There are obvious benefits to the assertion of
government power and
It is often thought that discussion of Aboriginal rights is a
recent phenomenon, a prod-
uct of the post-World War II climate that generally has been
favourable to human rights.
In fact, the discussion of the fundamental rights in relation to
Aboriginal peoples is con-
temporaneous with the 'Age of Discovery' itself. One of the
fathers of modern interna-
tional law can, with justification, also be labelled the father of
European Aboriginal
rights theory. (at 19-20)
74. As indicated by the comprehensive statutory framework
imposed by the Dominion

(and now Federal) government in the Indian Act, R.S.C. 1988,
c. 1-6.
TURPEL
the quest for economic dominance through control of land and
resources.
There is, no doubt, a constellation of factors, not all of which I
understand
or could explain. However, my impression, developed through
my own experi-
ences and work, as well as through formal education, is that
Aboriginal cul-
tures have been and still are presumed to be primitive,
premodern, or inferior
in the sense of being at lesser states of development than the
dominant
European culture. They continue to be viewed as artifacts. This
is disturb-
ing because it effaces cultural differences by presuming that
cultures are
basically the same, but at various historic levels of civilization.
The narra-
tive of cultural progress is antithetical to the idea of cultural
difference. The
theory of progress, or stories about development to a higher
state of knowl-
edge and cultural experience, is a product of an ethnocentric
predisposition.
It presupposes that one culture (European or European-
influenced) is the
measure of all others. Therefore, the primitive is just a nascent,

evolving
or disintegrating, state of cultural existence which needs to be
'rationalized'
and developed to progress beyond its folkloric origins.
If I extend this line of criticism to the Canadian constitutional
system,
one can see why it was, and still is, considered important for the
colonial
governments to take jurisdiction over Aboriginal peoples in
order to guide
them to a more rational or civilized state of being where these
'others' can
be assimilated into the yardstick culture. Not surprisingly the
Church was
usually the state's best ally in this endeavor. New allies include
the prison
and educational systems. This type of thinking about differences
as inferiority,
or as evaluative as compared with just different, arguably has
been, and con-
tinues to be, the main basis of denial of cultural difference.
Instead of
responding to departures from the culturally acceptable with
cultural self-
analysis, European-based cultures have reacted to difference
with plans of
civilization, sameness, domination and control. It has been
necessary to
protect and gradually civilize the "Indian" in Canada.
No government, colonial or present, has ever dealt with
Aboriginal
peoples on an equal basis without seeing them as means to an
economic goal
(settlement and development), as noble savages, as pagans

without civiliza-
tion, as welfare cases or as specimens for anthropological
investigation, scien-
tific collection or objects of tourism. I think this remains a
damning assess-
ment of the ethnocentricity of Canadian intracultural relations.
Genuinely
recognizing another People as an(other) culture is more than
recognizing
'rights' of certain persons. Aboriginal cultures are not simply
groups of
persons who are culturally at a prior state of development and
of different
races. Race has been most often defined in terms of biology (or
colour).
Aboriginal cultures are the manifestations of a different human
(collective)
imagination. They are no less than culturally distinct. This has
profound
(1989-1990) 6 C.H.R. Y.B.
implications. To borrow the words of someone who studied
these differences
throughout her life, Ruth Benedict:
[Aboriginal] cultures are oriented as wholes in different
directions. They are travelling
along different roads in pursuit of different ends, and these ends
and these means in
one society cannot be judged in terms of those of another
society because essentially

they are incommensurable . . All cultures, of course, have not
shaped their thousand
items of behaviour to a balanced and rhythmic pattern. Like
certain individuals, certain
social orders do not subordinate activities to a ruling
motivation. They scatter. If at one
moment they seem to be pursuing certain ends, at another they
are off on some tangent
apparently inconsistent with all that has gone before, which
gives no clue to activity that
will come after.
75
While it seems that, in the Canadian context, Aboriginal peoples
and non-
Aboriginal persons have some understanding and
acknowledgement of each
other, I would argue that this interaction has been at the
expense of Abori-
ginal peoples. We have been the ones who have had to suffer
from cultural
erosion in missions and prisons, and through economic
exploitation.
76
75. See Ruth Benedict, Patterns of Culture (New York: Mentor
Books, 1950) at 206.
76. For a sense of the cost of interaction on these terms, see
report of M. Jackson,
supra, note 5. One example is that of the Lubicon Lake Cree. As
Bernard Ominayak, Chief
of the Lubicon Crees, and Joan Ryan suggest in "The Cultural
Effects of Judicial Bias" in

Judicial Insensitivity to Native Culture [pub. data]:
In a short four years, the homelands of the Lubicons have been
scarred with seismic
roads, burned by unfought fires, and trampled by bulldozers.
The silence has been broken
with the sounds of trucks and pumps. All of this activity has
been undertaken unilater-
ally by the multinational oil and gas companies with the
agreement of the province of
Alberta. No one asked the Cree if they had concerns about the
way development should
proceed, or if it should proceed, on their lands. The outcome
has been the loss of a viable
economy. As the land base was disrupted human lives were
shattered because the rela-
tionship with the land was broken. This meant a loss of linkage
to the past, to the spirit
world, to ancestors, to identity and to affirmation of self. It
created a vacuum which
was overwhelming because all roles were negated and no others
could replace them fast
enough to make them workable. The rhythm of life was broken
and we began to see
the predictable results: people became depressed, they drank,
they abandoned themselves,
they had no context, they could not find new meanings in old
lands, they had no money,
no access to work, they lost status, dignity, identity,
responsibility. They became angry
and turned it inward; they became dependent and isolated. The
isolation was damaging
to individuals and to the collective; people who are very
competent to make decisions
when seeking consensus and relying upon the wisdom of elders,
do not necessarily know

how to make individual decisions. Where there is no work, no
activity, no vision of a
future and the links with the past are shattered, there is no
present and everything becomes
meaningless. So, marriages break down and children are ignored
because no one has
anything to offer them. (at 349-50)
TURPEL
Perhaps the only points in Canadian history at which it would
have
been possible to recognize difference were the times of treaty-
making. Of
course, treaties were made in European terms as legalistic,
written documents,
but they were taken by some Aboriginal peoples to be sacred
and represented
as such in, for example, the two-row wampum belt, or in their
oral histories.
The cultural differences in the understanding of treaties are very
striking,
as is clear from the sacrosanct character they continue to have
for Aboriginal
peoples, while being regarded by the Crown as having a status
similar to a
contract.77
Treaties were not de facto instruments for the recognition of
diverse
Indigenous cultures. In reality, they were political agreements
intended to

make way for economic and military progress, as defined
according to the
standards of the newcomers. It is clever how the Canadian law
of treaties
(Aboriginal-European) ascribes to treaties the status of
contracts or domestic
agreements: they are not seen as international agreements
between sovereign
peoples or nations. If you inquire as to why treaties are not
viewed as agree-
ments between two (or more) sovereign peoples, the argument
is, either, that
Aboriginal peoples (either at the time of treaty-making or now)
were not suf-
ficiently 'civilized' and organized to qualify as 'sovereign'
peoples, or that
they had already 'lost' their sovereignty through some
predestined and
mysterious process such as the good providence of being
'discovered'. The
conclusion to either argument is that treaties are akin to
paternalistic
contracts.
Of course, there is no compelling reason, according to
international
law, not to view treaties between Aboriginal peoples and the
Crown as treaties
between sovereigns, that is, as international treaties. 78 Nor
does there seem
to be any compelling reason for continuing to pretend that
Aboriginal peoples
77. As Mr. Ovide Mercredi of the Indigenous Bar Association
suggested to the Standing

Committee on Aboriginal Affairs, Minutes of Proceeding, No. 8
(24 May 1989) with respect
to education and treaty rights:
I am going beyond what the question was, but I also wanted to
address the initial ques-
tion that was asked about the nature of the relationship in the
future. As an Aboriginal
person with a Canadian citizenship, I would like to live in a
country that respects me
as an individual, as a member of the people I belong to, but in
such a way that I do
not have to beg or plead for recognition. I would like to live in
a country where I do
not have to justify my existence or come and plead for the right
to co-existence or my
right to self-determination. I would like to live in a country
where there is that kind of
understanding based on, as I said earlier, a relationship of
consensual arrangements. (at 31)
78. It is noteworthy that a current study is being conducted by a
United Nations Special
Rapporteur on treaties and other agreements in the indigenous
context. The Rapporteur,
Mr. Miguel Martinez, will be tabling his study with the United
Nations Working Group on Indi-
genous Peoples in 1990. See the Report of the Working Group
on its seventh session
E/CN.4/Sub.2/1989/36, at 26.
(1989-1990) 6 CH.R.Y.B.

lack distinct cultures or have inferior cultures. Why is it
necessary to continue
to try to fit Aboriginal cultural differences and historic claims
into the cate-
gories and concepts of the dominant (European) culture in some
form of
equivalence in order to be acknowledged? There is a
contradiction at work
in areas like human rights-that is, a contradiction between, on
the one hand,
wanting to accept Aboriginal peoples as distinct peoples, and,
on the other
hand, requiring that distinctness be expressed through
something called
Aboriginal rights defined by Canadian law and accepted in
courts whose
process and decorum reflect a different cultural system.
'Aboriginal rights' are those largely undefined rights in Part II
of the
Constitution Act, 1982.7
9 It is a category of rights with severe political and
legal limitations which have been described throughout this
paper: cultural
difference, judicial elitism, racism, and legalism. It is a realm

of analysis
in which discussions focussing on strange expressions like
'title', 'usufruc-
tory rights', 'mere promises', 'status', 'referential incorporation',
'extinguish-
ment', and 'existing' take on enormous significance, even though
they do
not seem to be commensurable in any way with the everyday
lives or cultural
systems of Aboriginal people. The frightening and frustrating
thing about
the centrality of these expressions to the lives of Aboriginal
peoples is that
they were thought up and imposed on those peoples by the same
culture that
brought us the 'rights' category. They seem prima facie
incompatible with
Aboriginal approaches to land, family, social life, personality
and spiritual-
ity. Yet somehow they are supposed to be helpful, existing to
assist Aboriginal
peoples in their struggles to continue to practice their cultures.
Scholars and
consultants are working away to produce a body of literature on
just what
existing Aboriginal rights can mean and how to formulate that
within the

rights paradigm of a "free and democratic society."
80 It is not surprising
that the most frequent and ambiguous rights claim advanced or
discussed
by Aboriginal peoples is self-determination or self-government.
This is a pecu-
liar kind of claim because, on the one hand, the 'right' claimed
is 'collec-
tive' and hence fits into a pre-existing category in Aboriginal
cultures. But,
on the other hand, it represents a request for the recognition of
difference
and for the end of cultural hegemony.
There is an important distinction between self-determination
and self-
79. See section 35, supra, note 16.
80. This is not to suggest that section 35 in Part II of the
Constitution Act, 1982 is affected
by section 1 in Part I of the Constitution Act, 1982. However, I
would suggest that the teleol-
ogy of constitutional scholarship after 1982 is one of suggesting
resolutions to constitutional
problems within the mainstream style of legal analysis. This is
problematic when the constitu-
tional problems relate to Aboriginal peoples because the extent
to which legal solutions are really

solutions, or the extent to which prescriptions from an
institution of the dominant culture can
embrace cultural differences, is questionable.
TURPEL
government for Aboriginal peoples. Self-determination is seen
as more in
keeping with cultural difference than is self-government. The
granting of self-
government (which has been the ultimate objective of all human
rights dis-
cussions in the Canadian context) implies that Aboriginal
peoples, who were
not previously able to govern themselves because they were not
at a suffi-
ciently advanced stage of civilization, can now take on some
responsibility
for their own affairs.8 ' This distinction is well illustrated in an
American
study of the history of the United States Indian policy written
by V. Deloria
and C. Lytle.8 2 These two scholars trace the problems with
self-government
in the United States, especially the paternalistic assumptions
about compe-
tence and civilization which underlie the position. They argue
that:
Self-government ... implies a recognition by the superior
political power that some meas-

ure of local decision-making is necessary but that this process
must be monitored very
carefully so that its products are compatible with the goals and
policies of the larger
political power. [It] implies that ... people ... are now ready to
assume some, but not
all, of the responsibilities of a municipality.
8 3
Aboriginal peoples have expressed the sentiment that the
association
of assumption of responsibility for self-government with
development is con-
trary to their aims and cultural systems. Consequently, there has
been a great
effort internationally for the recognition of self-determination,
or self-
definition and (broad) structuring powers. Unfortunately, the
idea of self-
government is sometimes used without any sensitivity as to its
historical
context or political implications as is illustrated by a recent
report of the
Canadian Bar Association special committee on native justice.
8 4
Self-determination is viewed as a more hopeful concept,
although it
too has its European antecedents, because it is fluid enough to
permit various
arrangements between existing or recognized states and
Aboriginal peoples.
It is viewed by them as a concept which provides greater
recognition of the

cultural differences of peoples who live within enclaves defined
by dominant
cultures rather than simply providing a predetermined context
for minority
or 'ethnic' rights. Discussion and controversy at the United
Nations Special
Working Group on Indigenous Peoples has been over human
rights violations
and historic claims under international law of Indigenous
peoples from
8 1. The idea that Aboriginal communities are not sufficiently
advanced to control their
own affairs was recognized until quite recently in the Indian
Act, where, under the provisions
for Band Council control over financial decisions, a Band could
make laws for financial issues
only when the Minister determines that they had reached a
sufficient stage of 'development'.
82. V. Deloria Jr. and C. Lytle, supra, note 18.
83. Ibid., at 14.
84. See, Aboriginal Rights in Canada: An Agenda for Action
(Ottawa: Canadian Bar
Association, 1988).
(1989-1990) 6 C.H.R.Y.B.
around the globe. During the past seven years, there have been
six meetings
of the Working Group and recently efforts have been directed at

the devel-
opment of a United Nations Declaration on Indigenous Rights.
8 5 Although
Aboriginal Peoples have been participating quite actively in the
process of
development of a United Nations Declaration, once again, they
are on the
margins of the United Nations system. Nevertheless, certain
states which are
members of the United Nations have been willing to advocate
the recogni-
tion of Indigenous rights in an international declaration. Canada
has not
been one of these states.
From the Aboriginal perspective, a cornerstone of any eventual
declara-
tion would have to be the recognition of the right of self-
determination of
indigenous peoples under international law. The summary of the
proceedings
of the 1989 United Nations Working Group on Indigenous
Peoples captures
this when it states that "there was a universal call from non-
governmental
observers for full or increased self-determination for indigenous
peoples and
for them to be accorded the political identity to which they feel
entitled. This
would avoid the present situation in which indigenous peoples
were being
marginalized and protect them from political oppression." 86
There are many
arguments which suggest that, even without a specific
declaration, interna-

tional law already recognizes the right of all Peoples (including
Aboriginal
Peoples) to self-determination.8 7 In Canada even the concept
of self-
government has been controversial and no official constitutional
action imple-
menting self-government has yet been taken in spite of a five-
year negotia-
tion process amongst First Ministers.
In my opinion, this failure to recognize cultural difference and
make
space for it in the constitutional structure is further evidence of
the fact that
the dominant culture has never recognized Aboriginal peoples
as distinct
peoples and cultures. I suppose that the exclusion or repression
of the "Abori-
ginal fact" of Canada in the present Constitution Act, 1982 in a
strange way
bolsters the idea that Aboriginal peoples are sovereign and
distinct (but
entrapped) nations. Nevertheless section 35 is there, as is
section 25, and it
is difficult to see what can be gained for Aboriginal peoples by
advancing
claims enveloped in the rhetoric of human rights. There is a
difference between
having 'rights' incrementally recognized, through constitutional
claims, and
being recognized as distinct cultures for the reasons indicated
earlier in this
paper.
85. See Report of the Working Group on Indigenous Peoples on
its Seventh Session,

supra, note 78.
86. Ibid., at 11.
87. G. Alfredsson, "Indigenous Rights in 1988" (1988) 3 Nordic
Journal of International
Law 353.
TURPEL
What alternative to rights-based claims are available? In the
pragmatic
work of human rights scholars and practitioners in Canada, a
discourse about
litigation strategies and legal doctrines, there hardly seems to
be an oppor-
tunity to stop and consider these kinds of questions about
Aboriginal cultural
difference and the Charter, or section 35. It seems inevitable to
me that legal
scholars and judges will have to consider more explicitly the
implications of
cultural difference for their analysis of disputes. These cultural
differences
between Aboriginal peoples and the dominant political and legal
system are
critical to our thinking about the Canadian constitution. I am
not yet per-
suaded that they are differences which can be accommodated by
the rights
paradigm. My impression is that Aboriginal peoples do not
advance their

claims within the rights paradigm because they do not share it.
So, what is
to be done? In my opinion, constitutional scholars and human
rights sup-
porters must ponder the implications of Aboriginal cultural
difference for
their analysis.
88
Moreover, it is important to recognize the broader implications
of the
rights-based claims for Aboriginal peoples. It is difficult for a
culturally dis-
tinct people to define the trajectory of its own development if
individuals
from within or outside the culture can challenge collective
decisions on the
basis that they infringe their individual rights under the Charter
in the Cana-
dian legal system which does not understand, or give priority to
collective
goals. Some people may view this subjugation of Aboriginal
peoples as the
triumph of democracy, but it makes the preservation of a
different culture
and the pursuit of collective political goals almost impossible.
In Aboriginal communities where different political and
spiritual tradi-
tions, such as the Haudenosaunee of the Iroquois Confederates,
are the
guiding force of the community in spite of the imposed Indian
Act system
of Band Councils, recourse to an individualistic rights-based
law like the

Charter could result in further encroachment upon the cultural
identity of
the community. These challenges could take one of two forms:
either a
member of the community could challenge Aboriginal laws on
the basis of
individual rights protections in the Charter arguing that they
have not been
respected by their government (an internal challenge); or a non-
Aboriginal
88. Clare Dalton has attempted this in "The Faithful Liberal and
the Question of
Diversity", (1989) 12 Harvard Women's L.J. 1, where she
observes that:
It is not simply a matter of filling, finally, some previously
identified and oddly persist-
ent gap in one's understanding. It involves recognizing that the
entire perceptual and
conceptual apparatus one has previously relied on for
knowledge about the world may
be faulty. It involves remaking the map of the world one carries
about in one's head
so that the gaps appear, generating the recognition that they
need to be filled. And since
it is in relation to this interior map that one locates and
identifies oneself, it involves
being ready to meet some unfamiliar and sometimes unwelcome
images of oneself. (at 1-2)
(1989-1990) 6 C.H.R.Y.B.

person could challenge the laws of an Aboriginal government on
the basis
that they do not conform with Charter standards (an external
challenge).
In the case of an external challenge, for example, on the basis
of voting
or candidacy rights where a non-Aboriginal complainant argued
that they
could not vote or stand for elections in an Aboriginal
community, a Canadian
court would be given the authority to decide an important part
of the future
of an Aboriginal people. It would have to consider the
protections afforded
Aboriginal rights by section 25 of the Charter and weigh these
against the
individual right to vote recognized in section 3. Should
Canadian courts (and
non-Aboriginal judges) have authority in such cases? The
critical question
is do they have cultural authority? Even if they did, in light of
the favoured
individualistic basis of the Charter, and of the history of
property rights,
would a collective Aboriginal right stand a chance? As the
National Chief
of the Assembly of First Nations suggested to the Parliamentary
Committee
on Aboriginal Affairs in 1982, "as Indian people we cannot
afford to have
individual rights override collective rights. Our societies have
never been struc-
tured that way, unlike yours, and that is where the clash comes
... If you

isolate the individual rights from the collective rights, then you
are heading
down another path that is even more discriminatory ... The
Canadian
Charter of Rights is in conflict with our philosophy and culture
...."89
The key in this passage is 'when you isolate.' Such analysis in
cases involv-
ing Charter application or interpretation and Aboriginal peoples
is completely
inappropriate culturally speaking.
The other possible challenge, the internal challenge, is
conceivable where
a member of an Aboriginal community who feels dissatisfied
with a particular
course of action the Aboriginal government has taken, or
envisages taking,
turns to the Charter for the recognition of a right. This is an
equally, if not
more, worrisome prospect. This kind of challenge would be a
dangerous open-
ing for a ruling by a Canadian court on individual versus
collective rights
within an Aboriginal community. It would also break down
community
methods of dispute-resolution and restoration, or place limits on
the re-
establishment of such methods. Here, the example of the Indian
Civil Rights
Act9° in the United States is instructive. This act, based on the
idea that pro-
tections from the American Bill of Rights should be extended to
Aboriginal
communities, along with the establishment of tribal courts

which would have
the same function as American courts, has been greatly
criticized by
Aboriginal people as imposing upon tribes culturally
inappropriate means
of dealing with disputes.
89. House of Commons Standing Committee on Aboriginal
Affairs Minutes and Proceed-
ings, Evidence no. 58 (29 September 1982).
90. U.S., Statutes at Large, 82:77.
TURPEL
Deloria and Lytle suggest, in this regard, that:
In philosophical terms, it is much easier to describe the impact
of the ... Act. Traditional
Indian society understood itself as a complex of responsibilities
and duties. The [Act]
merely transposed this belief into a society based on rights
against government and elim-
inated any sense of responsibility that the people might have
felt for one another. Granted
that many of the customs that made duties and responsibilities a
serious matter of indi-
vidual action had eroded badly in the decades since the tribes
had agreed to move to
reservations, the impact of the [Act] was to make these
responsibilities impossible to
perform because the act inserted the tribal court as an

institution between the people
and their responsibilities. People did not have to confont one
another before their commu-
nity and resolve their problems; they had only to file suit in
tribal court.
91
The lessons of the American Indian Civil Rights Act, and of the
estab-
lishment of tribal courts, are important ones in light of the
Charter. If internal
disputes are brought before Canadian courts, it will seriously
undermine the
Aboriginal styles of dispute resolution based on, for example,
teachings of
responsibility (like the Four Directions), and impose a system
of individual-
based rights. It would also have the effect of encouraging
people to go out-
side the community and its customs, to settle disputes in formal
courts, instead
of dealing with problems within the community. This is
particularly threaten-
ing, perhaps even ethnocidal, to Aboriginal peoples who are on
the brink
of cultural destruction because of the legacy of colonialism and
paternalism
under the Indian Act. The possibility of having that
unacceptable (Indian
Act) bureaucratic regime of supervision and control replaced by
a judicial
one of review and adjustment under the Constitution Act, 1982
hardly seems
like a change at all. Replacing one culturally insensitive master
with another

may be a change; but it is a change solely for the sake of change
which will
only continue the repression of Aboriginal peoples.
This might sound like a hard line to take, especially when one
considers
the extent to which customs and traditional methods of
governance and
dispute-resolution have been dislodged in Aboriginal
communities after more
than a century of life under the Indian Act. Moreover, the
experience of a
century of gender-based discrimination with respect to Indian
status and the
Indian Act, where discrimination was employed as a technique
of assimila-
tion up until the 1985 amendments to the Indian Act (many see
the gender-
based discriminatory provisions as having continuing effect
despite the
amendments), has frightened many Aboriginal communities. 92
Male-
dominated Band Councils frequently sided with the Canadian
government
against disenfranchised women in the belief that to do otherwise
would under-
91. Deloria and Lytle, supra, note 18 at 213.
92. See K. Jamieson, Indian Women and the Law in Canada:
Citizens Minus, (Ottawa:
Advisory Council on the Status of Women, 1978).
(1989-1990) 6 C. H.R.Y. B.

mine the Crown's trust responsibility for Aboriginal peoples. As
a conse-
quence, women were forced to go outside the community to
resolve the injus-
tices of gender-discrimination. Cases were brought under the
Canadian Bill
of Rights and eventually under the United Nations Covenant on
Civil and
Political Rights. 9 3 Changes were made to the Indian Act, 94
but many of the
after-effects of gender discrimination still plague Aboriginal
communities,
including problems associated with women returning to
communities, taking
up residence, and seeking to educate their children, share in
social services,
and receive per capita payments from resource exploitation on
Aboriginal
lands. These are profound conflicts for cultures which are, in
most cases,
matrilineal in structure.
Communities have been slow to address questions related to the
after-
math of gender-discrimination in the Indian Act, and the
mechanisms to
resolve disputes according to customary practices are not
necessarily avail-
able. This has placed a great deal of pressure on Aboriginal
communities
which could lead to cases being taken to Canadian courts
pursuant to the
Charter for protection of rights against encroachment by

Aboriginal govern-
ments. Concern over what this could involve, given the
individual-based
notions of rights under Canadian law, and in light of lessons
derived from
the United States experience with the Indian Civil Rights Act,
has encour-
aged Aboriginal women to develop model laws in areas like
'citizenship' and
human rights; laws which are based, as far as possible, on
inherent First
Nation jurisdiction while leaving wide scope for tailoring to the
customary
practices of each people.
95
In 1986, the Native Women Association of Canada began to
develop
a First Nations human rights and responsibilities law in order to
discourage
internal challenges of Aboriginal government actions in
Canadian courts
under the Charter. It appears that this Code, which, at the time
of writing
is still in the draft stages, will be based on the inherent
jurisdiction of First
Nations to make laws for their peoples. It will include a very
loosely and
generously worded part on human rights and responsibilities,
corresponding
to four groups of rights and responsibilities which come from
the teachings
of the Four Directions. The following responsibilities and rights
are paired:
(i) strength-cultural rights, (ii) kindness-social rights, (iii)

sharing-
economic rights, (iv) trust-political and civil rights.
96
93. Lovelace v. Canada, [1982] 1 C.N.L.R. 3.
94. Bill C-31, June, 1985.
95. Native Women's Association of Canada, A First Nations
Human Citizenship Code
(1986).
96. Native Women's Association of Canada, "Draft First Nations
Human Rights Law
1989," on file with the author.
TURPEL
The provisions on dispute-resolution in the model law
developed by
the Native Women's Association provide options for
communities to consider
in creating a law which fits its customs and aspirations. These
include: media-
tion, the establishment of a Human Rights Committee, and a
Council of
Elders. Also included are suggestions for methods to deal with
conflicts on
a regional basis (e.g. an Iroquois or Ojibway council of elders).
It is hoped
that the work of the Association will contribute to the
development of com-

munity laws amongst Aboriginal people, that the result will be
less formal
community solutions, and that individual members of First
Nations com-
munities will not have to go outside their communities (to
Canadian courts)
to seek redress. It seems that the development of community
codes is the
best available interim solution to the most pressing problems
within com-
munities and to the threat of the (further) imposition of the
human rights
paradigm on Aboriginal communities.
Nevertheless, the work of the Native Women's Association of
Canada
only addresses the problem of internal challenges based on the
Charter by
members of First Nations communities. It does not attempt to
deal with the
other areas of concern such as external challenges brought by
non-Aboriginal
peoples pursuant to the Charter which call into question the
collective basis
of Aboriginal communities. Any case which presents a Canadian
court with
the opportunity to expound a rights analysis will be an
opportunity to under-
mine the recognition of Aboriginal peoples as fundamentally
different
cultures. These cases permit the court to extend their
jurisdiction over Abori-
ginal peoples, and to make critical value choices under the guise
of Cana-
dian law. Such decisions will not be that different from the
imposed system

of rule under the Indian Act, except that in Charter cases the
court can cloak
its decisions in the rhetoric of democratic freedom, equality,
emancipation,
multiculturalism and human rights for 'all Canadians.'
It is difficult for me to see any potential for sensitivity to the
cultural
differences of Aboriginal peoples in the constitutional rights
paradigm. I could
imagine a strong defensive argument being developed under
section 25 to
the effect that, in light of cultural differences, Aboriginal
peoples are immune
from Charter jurisprudence or interpretation. The Charter,
according to this
argument, does not extend to them because of the
incommensurability of
the conceptual framework of the rights paradigm. I find it
impossible to be
reconstructive or instrumental in my analysis and such has not
been my pur-
pose. The rights paradigm and interpretive context of Canadian
constitutional
law is so unreceptive to cultural differences that, as a result, it
is oppressively
hegemonic in its perception of its own cultural authority. There
is no shortage
of the variety of constitutional scholarship which suggests
variations of
Charter arguments. My intention has been to focus attention on
ignorance,
insensitivity, and incommensurability in legal scholarship and
practice in this
area.

(1989-1990) 6 C.H.R.Y.B.
(iii) CULTURE HEGEMONY AND LEGAL DISCOURSE
While my analysis has focussed primarily on the significance of
cultural
difference in constitutional, and especially, as relating to the
Canadian
Charter, legal analysis, I am also interested in the broader
implications of
the line of criticism pursued here. The opening of a space for
considering
cultural differences in Canadian legal analysis involves the loss
of a cultural
monopoly over the generation of law and its interpretation, a
loss of univer-
sality which, undoubtedly, sits uncomfortably with lawyers
committed to the
rule of law. If irreconcilable conceptions of law exist within the
imagined
confines of one 'state', what is to be done? One possibility is the
denial of
cultural difference which would continue oppression through
the maintenance
of the cultural monopoly or hegemony. There is also the
possibility for toler-
ation of differences and the recognition of autonomous or
incommensurable
communities. This choice has profound implications for the
style of legal
analysis and judging now practiced. If nothing else, it forces us
to question

the cultural legitimacy and authority of the judiciary as an
institution com-
petent to choose between and among varying cultural images.
For a judge,
a situation of cultural difference should be and must be a
situation of not
knowing which direction to go, a situation involving choices
about reason-
ing which may not be defensible or acceptable. It involves
episodes of undecid-
ability, self-judgment, and uncertainty. It would involve
acknowledging the
imperative of admitting mistakes and recognizing ignorance.
This type of criticism of the Charter and legal interpretation
exposes
and reinforces the extent to which legal knowledge and
processes are localized
or contingent, both as matters of history and culture. As
Clifford Geertz
has argued:
Law, I have been saying, somewhat against the pretensions
encoded in woolsack rhetoric,
is local knowledge; local not just as to place, time, class, and
variety of issue, but as
to accent-vernacular characterizations of what happens
connected to imaginings of what
can. It is this complex of characterizations and imaginings,
stories about events cast in
imagery about principles, that I have been calling a legal
sensibility.
97
So much for the supreme law of Canada?

97. Clifford Geertz, supra, note 67, at 215.
TURPEL
Reading Assignment for February 23
Please note: the order and chapters are based on the course
readings posted on CULearn
Please re-read:
Chapter III -- Human Rights Codes and the Charter
Mary Ellen Turpel, "Aboriginal Peoples and the
Canadian Charter: Interpretive Monopolies, Cultural
Differences," (1989-1990) 6 Canadian Human Rights
Year Book 3- 45
And read:
Chapter IV – Theorizing Grounds
Wendy G. Smooth, “Intersectionality from Theoretical
Framework to Policy Intervention” in Politics of
Intersectionality:Situating Intersectionality: Politics,
Policy and Power Angela Wilson (ed.) (Palgrave
MacMillan,
2013) 11-36
Please note: The discussion paper for Chapter IV – including
all of the chapter IV readings -- will be due March 2

Questions for class discussion
February 23
Mary Ellen Turpel, "Aboriginal Peoples and the Canadian
Charter: Interpretive Monopolies, Cultural Differences"
1. What is Turpel’s primary critique of the Charter?
2. What is the role of a legislative preamble? What is
problematic about the preamble to the Charter?
3. Turpel advocates a cultural differences analysis. Razack
critiques a cultural differences approach. Where does the
disagreement between these two authors lie and where are they
in line with each other?
4. What does Turpel mean when she discusses the perception of
cultural difference as an imperative and how is that distinct
from seeing it as a gap in knowledge (p.13)? What is the
impact of such a distinction?
5. What is Turpel’s critique of the rights paradigm? And what
is its significance with respect to the Charter?
6. Are there any possible routes out of the situation Turpel
presents?
Wendy G. Smooth, “Intersectionality from
TheoreticalFramework to Policy Intervention”
1. What is intersectionality? Why is it so important?

2. On page 13 Smooth describes the paradox that
intersectionality presents for social science researchers. What
would you say is the paradox that intersectionality presents for
human rights advocates?
3. According to Smooth, “intersectionality is most useful not
when it is used to explore how power is most familiar, but when
intersectionality offers us a means to make visible hidden power
differentials that are naturalized through systems of inequality,
or when it helps researchers disrupt dominant narratives of
privilege” (p.17). Do you agree? Can you think of examples
(perhaps from previous course readings?) of each of these ways
that intersectionality might expose sites of power and privilege?
4. What are the methodological issues in exploring
intersectionality that Smooth describes as unresolved tensions?
How do these apply in the human rights context? Are they
resolvable? If not what does that mean for how we proceed in
the human rights project?
********

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